Paying the local authority or court direct...who is entitled to these 'direct payments'

[mikeymack2002]

Hand over head time I give up with you DB either you are playing around or missing the point entirely either way a waste of time trying to explain, last time I was refereeing to that fact you asked for an old law that could help , what I was saying using old law is good and gave 2 examples, from the way you responded you really don't read what is in front of you

[Peterbard]

Hand over head time I give up with you DB either you are playing around or missing the point entirely either way a waste of time trying to explain, last time I was refereeing to that fact you asked for an old law that could help , what I was saying using old law is good and gave 2 examples, from the way you responded you really don't read what is in front of you

 

OK MM.

 

Basically statue overrides common law, or case law.

Currently the law regarding the issuance of fees is contained within the TCEA, any previous case law which provided legal weight is now of no interest because it does not now apply.

 

If the subject contained in common law is not either overturned by subsequent cases or repealed by later statue it generally will still apply.

[outlawla]

OK MM.

 

Basically statue overrides common law, or case law.

Currently the law regarding the issuance of fees is contained within the TCEA, any previous case law which provided legal weight is now of no interest because it does not now apply.

 

If the subject contained in common law is not either overturned by subsequent cases or repealed by later statue it generally will still apply.

 

There are no laws overturned by subsequent cases or repealed by later statute. The legislation contained within TEC etc., is a distinct matter from the laws which provide for the allocation of monies where a preference for a particular account is made clear by the person paying.

 

The laws regarding allocation of payments in respect of the new regulations are only relevant if the enforcement agent has obtained payment.

[Bailiff Advice]

In my post number 58 you will see that I mentioned that this 'theory' of Outlawla's relates to an internal document from Milton Keynes Council. Thank you MM for providing the copy (my copy is on my office computer system).

 

It is from reading this document (item number 3.3.1) that Outlawla hit on the idea about the 200 year old legal case of Peters v Anderson and he wrote about in on this very forum way back in 2011. Perhaps he would be kind enough to let us all know whether Milton Keynes Council were sent the same Freedom of Information request as many other councils:

 

https://www.whatdotheyknow.com/request/taking_control_of_goods_fees_reg_34#incoming-608517

 

If so, perhaps he would be kind enough to post a copy of their reply.

 

In any event, I will be writing to them myself today.

 

Before making hundreds of Freedom of Information requests to councils alleging that they are acting unlawfully it would have been useful to do what I have done and get the opinion from a Barrister.

 

Since I have been posting on here (2007) I have written frequently about the misunderstand at the way in which the legislation at that time (The Council Tax (Administration and Enforcement) Regulations 1992) addressed the matter of bailiff fees. To try to keep this simple:

 

The 1992 regulations provided that once a Liability Order had been issued, a local authority could use a range of enforcement procedures to recover the debt. The most popular enforcement procedure being to ‘levy distress’. If this was the chosen option, the local authority (according to the regulations) could only charge fees in strict accordance with Schedule 5. As is made clear, the local authority could ‘levy distress’ and the local authority could only charge the fees outlined in Schedule 5.

 

At the time of the 1992 regs only a few local authorities had their own in house bailiffs who could ‘levy distress’ and accordingly, it was necessary to introduce new legislation (The Contacting Out of Council Tax) to enable bailiffs to undertake the task of ‘levying distress’ on behalf of the local authority and to collect the local authorities bailiff fees.

 

The most important point here is that under that legislation, the bailiff fees belonged to the local authority. This may seem difficult to comprehend but that was the way in which the legislation was written.

 

Most importantly, (and reported in the Milton Keynes document (3.4.2) ) the 1992 regulations provided under item 52(4) that if any sums were recovered (by a bailiff) that were less than the amount outstanding and the additional costs and charges (Schedule 5 costs) that the amount paid should be used to first discharge the bailiff fees with the balance being applied towards discharging the arrears of council tax.

 

At that time, many local authorities had different ways in which they would account for the bailiff fees and indeed this is highlighted in the Audit Report from Milton Keynes Council.

 

It is important to remember though that this audit report was from 2009 and referred to the regulations that were in force at that time (The Council Tax (Administration and Enforcement) Regulations 1992.

 

The position now has changed completely to provide that local authorities are no longer entitled to the bailiff fees and instead, the bailiff fees belong to the enforcement agent and this is clarified in law. Accordingly the references as to how direct payments are 'allocated' is no longer of any relevance.

 

A final point is that if a local authority allocates a payment in a way that the debtor considers is wrong this in itself would not be considered unlawful. At worse, it could be ultra vires by the local authority but that would most likely be for the High Court to consider.

 

Finally, Outlawla is right on one point. The Ministry of Justice do not need to amend legislation to close this loophole. This is because.......there isn't one.

[mikeymack2002]

OK MM.

 

Basically statue overrides common law, or case law.

Currently the law regarding the issuance of fees is contained within the TCEA, any previous case law which provided legal weight is now of no interest because it does not now apply.

 

If the subject contained in common law is not either overturned by subsequent cases or repealed by later statue it generally will still apply.

 

 

SERIOUSLY like I said above hand on forehead now, you deliberately ignore a point because it does not sit well with you shame! having read so much and seen so much and talked so much about law. I am not the only one that sees what I see and that is your total blindness to something you do not like, even post #78 has corrected you, need I say more? I really do not need a lesson on how to read or post from someone as indifferent as yourself. If I need a lesson I just gently lean over and ask my daughter.....

[mikeymack2002]

BA...

Surely for reasonable thoughts why wouldn't the LA issue just one LO for ALL arrears and allow the bill payer to carry on paying the current bill as well, which would mean making and accepting reasonable repayments of the arrears, if not then the debtor will most certainly be caught in this trap most years.

 

 

Now with this in mind, paying the current year could the LA then forward this payment to the EA as part of the collection of previous years? This is why allocation of funds is so important.

[GrumpyToSayTheLeast]

Yes, the debtor can choose to pay the new years rates or the arrears. He/she can choose which account to pay into. But what the debtor cannot choose to do is pay the arrears account but stipulate that none can be given to the bailiffs.

[Bailiff Advice]

This thread has clearly gained a lot of interest (possibly because it has been picked up by SCOOP) but it does not look good to outsiders to see arguments taking place between regular posters on here. Can these please STOP.

 

Thank you.

[Bailiff Advice]

BA...

Surely for reasonable thoughts why wouldn't the LA issue just one LO for ALL arrears and allow the bill payer to carry on paying the current bill as well, which would mean making and accepting reasonable repayments of the arrears, if not then the debtor will most certainly be caught in this trap most years.

 

Because it would require a change in legislation.

 

 

Now with this in mind, paying the current year could the LA then forward this payment to the EA as part of the collection of previous years? This is why allocation of funds is so important.

 

If the debtor was paying this current years council tax then payments would naturally be going to the local authority towards the current debt and must be allocated accordingly (towards the current council tax bill). Unlike banks, the councils do not have a right of 'set off'.

[mikeymack2002]

Thx BA

[outlawla]

Before making hundreds of Freedom of Information requests to councils alleging that they are acting unlawfully it would have been useful to do what I have done and get the opinion from a Barrister....

 

A Barrister will give an 'Opinion' biased in favour of that person paying him/her. I assume then, that the Barrister made a case to argue that it would not be unlawful to divert monies to a contractor earmarked for the public purse.

[Bailiff Advice]

But what the debtor cannot choose to do is pay the arrears account but stipulate that none can be given to the bailiffs.

 

Correct and even more so under the old 1992 regulations given that under those old regs, the local authorities bailiff fees were to be deducted first !!!

 

What we have now is an almost similar situation but instead of the fees legally belonging to the local authority (as they did under the 1992 regulations) they are now legally due to the enforcement agent.

[outlawla]

....What we have now is an almost similar situation but instead of the fees legally belonging to the local authority (as they did under the 1992 regulations) they are now legally due to the enforcement agent.

 

Except of course, for the enforcement agent to be legally entitled to those fees, he must have obtained payment.

[Peterbard]

SERIOUSLY like I said above hand on forehead now, you deliberately ignore a point because it does not sit well with you shame! having read so much and seen so much and talked so much about law. I am not the only one that sees what I see and that is your total blindness to something you do not like, even post #78 has corrected you, need I say more? I really do not need a lesson on how to read or post from someone as indifferent as yourself. If I need a lesson I just gently lean over and ask my daughter.....

 

Sorry MM you must be right , because i do not have a clue what you are on about.

[Bailiff Advice]

Except of course, for the enforcement agent to be legally entitled to those fees, he must have obtained payment.

 

I am sorry Outlawla but you are once again wanting to invent controversies where none really exists and in so doing, you are not helping debtors one bit.

[Peterbard]

There are no laws overturned by subsequent cases or repealed by later statute. The legislation contained within TEC etc., is a distinct matter from the laws which provide for the allocation of monies where a preference for a particular account is made clear by the person paying.

 

The laws regarding allocation of payments in respect of the new regulations are only relevant if the enforcement agent has obtained payment.

 

Apparently this post corrected me.

 

Ok first sentence "There are no laws overturned by subsequent cases or repealed by later statute"

 

If you do not know that this is fundementally incorrect then really there is no hope for you.

 

Second sentence; "The legislation contained within TEC etc., is a distinct matter from the laws which provide for the allocation of monies where a preference for a particular account is made clear by the person paying."

 

I presume that you mean TCE you are corect the TCE does not involve itelf in the allotments of funds between individual accounts within the authority.

 

Last sentence: "The laws regarding allocation of payments in respect of the new regulations are only relevant if the enforcement agent has obtained payment."

 

This is incorrect as any payments made whilst an account is under an enforcment power have to be distributed as per the legislation (sched 12 TCE)

Who the payment is made to is irrelevant as per the FOI , the legislation , and virtually everyone else.

[SabreSheep]

Personal attacks are not welcome here, posts unapproved

[SabreSheep]

Ok this is a final warning

 

Keep this discussion based on facts.

 

Keep IT CIVIL Everyone

 

Or the thread will be closed.

 

Regards

 

SS

[Bailiff Advice]

Before making hundreds of Freedom of Information requests to councils alleging that they are acting unlawfully it would have been useful to do what I have done and get the opinion from a Barrister.

 

Since I have been posting on here (2007) I have written frequently about the misunderstand at the way in which the legislation at that time (The Council Tax (Administration and Enforcement) Regulations 1992) addressed the matter of bailiff fees. To try to keep this simple:

 

The 1992 regulations provided that once a Liability Order had been issued, a local authority could use a range of enforcement procedures to recover the debt. The most popular enforcement procedure being to ‘levy distress’. If this was the chosen option, the local authority (according to the regulations) could only charge fees in strict accordance with Schedule 5. As is made clear, the local authority could ‘levy distress’ and the local authority could only charge the fees outlined in Schedule 5.

 

At the time of the 1992 regs only a few local authorities had their own in house bailiffs who could ‘levy distress’ and accordingly, it was necessary to introduce new legislation (The Contracting Out of Council Tax) to enable bailiffs to undertake the task of ‘levying distress’ on behalf of the local authority and to collect the local authorities bailiff fees.

 

The most important point here is that under that legislation, the bailiff fees belonged to the local authority. This may seem difficult to comprehend but that was the way in which the legislation was written.

 

The position has now changed completely to provide that local authorities are no longer entitled to the bailiff fees and instead, the bailiff fees belong to the enforcement agent and this is clarified in law. Accordingly the references as to how direct payments are 'allocated' is no longer of any relevance.

.

 

Further to the above post, in 1997 the DETR (Dept of the Environment Transport and the Regions) released the outcome of the consultation paper regarding bailiffs and stated the following:

 

The levy of distress:

 

Responses to consultation indicated that there is some confusion over the nature of the relationship between the local authority, to whom the fees are payable and a private sector bailiff to whom the work may have been contracted.

 

I would like to reiterate that fees payable in relation to the levy of distress are intended to cover the costs of the local authority and are due to the local authority. Proposal were made to change some fee levels because it was considered that they were no longer meeting the costs of the local authority. However fees charged to a debtor should only recompense a local authority for the costs arising from that debtor. They should not be increased to allow for costs from other debtors which have not been recovered nor to allow for an element of profit.

 

Where the levy of distress has been contracted to a private sector bailiff company it will be for the local authority and the bailiff company concerned to agree how the bailiff company should be paid for work which ultimately does not cover its costs.

[Coughdrop]

I remember this article about Eric Pickles telling councils off about the notorious Head H fee and kickbacks. At least things are simpler now.

[Peterbard]

I wonder if there will be any amendment to the fee scale when and if enforcment goes in house.

 

The scale at the moment is calculated in order to provide a profit for the commercial bailiffs, when the enforcement is in house there should be a not for profit regime as they will be court employees, also overheads will be far less.

 

The compliance letter could be sent from the same back office that sends the reminders, hardly justifying a £75 charge.

[Bailiff Advice]

I remember this article about Eric Pickles telling councils off about the notorious Head H fee and kickbacks. At least things are simpler now.

 

This document by Eric Pickles was very odd indeed and was issued after the dreadful fallout from allegations of 'kickbacks' being paid to local authorities (in particular to London Borough Of Harrow) by bailiff companies.

 

The problem however was that Mr Pickles was wrong and I can only assume that he had not been properly briefed by his staff as to how the Council Tax regulations had been set up. As I have outlined above, the 1992 council tax regs specifically provided that the bailiff fees belonged to the local authority and accordingly, the enforcement companies should not have been criticised by Mr Pickles for paying money to the council. The payments were not kickbacks. However, with the new regulations the bailiff fees clearly belong to the bailiff company and accordingly, if a 'kickback' was now to be paid this would be wholly illegal.

 

On the point about the 'Head H' fees, I have no hesitation whatsoever in applauding Outlawla for his sterling work over the past few years the uncovering the dreadful abuse of this fee and my only disappointment (no doubt shared by many others) is that very little came from his complaints.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/210478/Guidance_on_enforcement_of_CT_arrears.pdf

[Peterbard]

Remember this

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?327112-LADER-report-on-Local-Authorities-and-Bailiffs&highlight=lader