Newlyn removed car for CTAX debt - but notice of enforcement is over 12 months old?

[Leakie]

Good luck

but make sure you get it in writing as UB said,

Then you can prove the council made the mistake not you.

 

But I still think it will be a lost cause . establishment against you

keep us updated please

[Bru911]

will speak to the council and get the information documented and pass on to someone that can help

[brassnecked]

Don't think suing the bailiff has legs sorry to say, as the fees were outstanding and account still with bailiff.

[Bailiff Advice]

cheaper for me to make a civil action against the bailiff firm to recoup the loss and present the facts as they stand. They can judge the facts and what is not acceptable. i will like to hear them over ride what they have put in legislation.

 

I am not sure how you can determine that it is cheaper to issue civil proceedings against Newlyn's (or Harrow Council).

 

The fact of the matter is that in the first instance, if you consider that the vehicle should not have been taken then the correct course of action is for you to issue a Part 85 Claim. This is a very simple procedure and is completely free. It is for you to demonstrate why you consider that your car should not have been taken. The claim is served upon Newlyn and they in turn will serve a copy on Harrow Council. It will be for Harrow to decide whether to accept your claim (in which case the car will be released). If Harrow reject your claim, you may have your claim considered in court.

 

You will be heavily criticised in court if you issue legal proceedings without first taking steps to resolve the matter in the way in which Parliament intended (i.e by way of a Part 85 Claim).

 

The reality is that if your claim is presented properly it will be accepted. On a personal basis, I have only had one Part 85 Claim rejected (and that was against Newlyn's).

[Peterbard]

Now we have taking private action, I am waiting for proceeds to be mentioned shortly.

[brassnecked]

Now we have taking private action, I am waiting for proceeds to be mentioned shortly.

Definitely a bad idea, OP should try Part 85 first whatever they choose to do subsequently.

[Peterbard]

Of course, it is a free procedure.

 

Personally i fail to see how you can bring an action because someone did not pay someone else in any case.

[unclebulgaria67]

As a matter of interest in regard to the law that applies.

 

What effect does this 12 month period from notice of enforcement have on the powers of enforcement, ater the 12 months have run out ? Do they have to issue another notice or the powers stop ?

 

If the CT l/o was still outstanding presumably Newlyn would be acting as part of a court authorised process to collect the amount due including any enforcement fees. The 12 months on the NOE is part of the process, as is a Council passing over any money received to the EC. This passing over of money to the EC ensures that after the EC has taken a share to cover enforcement costs, that the l/o is still partially outstanding and they have legal power of the courts for enforcement.

 

If a Council does not pass on money received directly, the l/o is fully satisfied and the 12 months on the original NOE has run out, i would question under what lawful process is an EC seizing and taking a vehicle on a public highway ?

[Peterbard]

This is tosh'

 

All this business about who does what with proceeds once paid is an invention of some bonehead who really has too much time on his hands

 

The law says how and when what sums are due, how the money paid is handled by the creditor and his employee is entirely upto them.

 

The law says that the money paid whilst under an enforcement power is due to the bailiff, now really, whether he has possession of it or his employer or even Mrs Jones the baker down the street is complexly irrelevant, as long as it is with consent of the bailiff, the simple truth is that the debtor owes a sum he has payed part of it the rest remains.

[Leakie]

Well DB

we will find out if this is the case if the OP pursues this, and if the Judge agrees with his interpretation or Yours DB.

And Hopefully comes back and informs us.

 

No Need to insult the OP

He has researched the rules and has come to a different posit of view,

This it what the Forum was about a self help forum.

I think UB has a point in post 61.

 

At the end of the day it is down to interpretation and case law in a higher court.

 

I hope he goes down the Section 85 route first, once he has confirmation in writing of what he has been told by he council.

[Bailiff Advice]

As I said earlier on this thread, most local authorities now understand how (and more importantly.....WHY) the pro rata distribution was put in place and they now have relevant software to deal with direct payments. It is known that approx half a dozen local authorities (out of over 300) have retained direct payments but even these are now understood to be changing their approach as well.

 

As I mentioned earlier as well, I would be staggered if Harrow Council retain direct payments. I will try to make some enquiries later today.

[Peterbard]

Well DB

we will find out if this is the case if the OP pursues this, and if the Judge agrees with his interpretation or Yours DB.

And Hopefully comes back and informs us.

 

No Need to insult the OP

He has researched the rules and has come to a different posit of view,

This it what the Forum was about a self help forum.

I think UB has a point in post 61.

 

At the end of the day it is down to interpretation and case law in a higher court.

 

I hope he goes down the Section 85 route first, once he has confirmation in writing of what he has been told by he council.

 

It is not my view it is the view of the tens of cases already shown and the applicable law, this has been demonstrated numerous times on this forum and others yet we still have the same old arguments.

As for anything the OP says , personally i think it is all a spoof, now that is my opinion.

[Peterbard]

As I said earlier on this thread, most local authorities now understand how (and more importantly.....WHY) the pro rata distribution was put in place and they now have relevant software to deal with direct payments. It is known that approx half a dozen local authorities (out of over 300) have retained direct payments but even these are now understood to be changing their approach as well.

 

As I mentioned earlier as well, I would be staggered if Harrow Council retain direct payments. I will try to make some enquiries later today.

 

The thing about the current requirement to pass the payments or not even receive them, (Send them back to the debtor). is simply because of all this misinformation, there is no need for them to do this in law.

 

It is simply because so many people fail to understand a simple accounting practice, it was easier to just make adjustments to the procedure, then keep answering a myriad of silly FOI requests.

[unclebulgaria67]

I ask questions because i am interested in how legislation passed in Parliament is put to practical use and how adding to existing legislation can just make it more complicated.

 

Given that we see so many unaswered questions, it is quite obvious that legislation has not provided Councils, EC's, advice services and the public a clear understanding of the legal processes that apply.

 

We all know that EC's only receive their powers under the law by a court e.g liability order, warrant.

 

In regard to Council Tax Liability Orders, is there any specific legislation that deals with the situation where a Council received full payment of a L/O and the 12 months period provided under a NOE has expired, leaving enforcement fees outstanding ?

 

Forget any deals between Councils and EC's about sharing money paid direct to Councils. Given how tight Councils are with money and Councils are increasingly looking to take enforcement in-house, i suspect that we will see Councils keeping money received.

 

An EC can only earn their fees in pursuit of an order of a court and if a Council has kept money paid to cancel a L/O, then the EC no longer has any power after the 12 months expiry of the NOE. At the time the OP's car was seized arguably there was no legal authority of a court, as the Council accepted payment to cancel the L/O. If the car had been seized within the 12 months of the NOE, then i could see the argument that it was within the same period as authorised by the L/O.

[Peterbard]

If the power to enforce using schedule 12 procedures is taken or handed back to the authority any payments made after this are the property of the council, the enforcment power has died and with it the bailiffs powers to charge fees.

 

Any payments made whilst the power to use the procedure is with the baiiff is regarded as being a result of that enforcment power and belongs to the bailiff, it is part of the ammount outstanding.

[Leakie]

Well then DB

You have answered the OP's question.

 

If and it is only an if, they took the car, and the payment was made after the NOE had expired,and a new NoE had not been sent,

The OP has a point,

and Newlyns acted incorrectly,

[unclebulgaria67]

If the power to enforce using schedule 12 procedures is taken or handed back to the authority any payments made after this are the property of the council, the enforcment power has died and with it the bailiffs powers to charge fees.

 

Any payments made whilst the power to use the procedure is with the baiiff is regarded as being a result of that enforcment power and belongs to the bailiff, it is part of the ammount outstanding.

 

Councils and EC's must follow the process that stems from the Court power i.e L/O. As soon as they depart from this with the Council keeping the money and telling the tax payer that the L/O has been settled, there is no longer any power in the hands of either the Council or EC. This is more the case outside of the 12 months period allowed by the NOE.

 

This has to be correct. Schedule 12 is purely about exercising a power using the L/O. Once the L/O no longer provides the power and especially after 12 months, i think it would be difficult to argue about an EC continuing to be able to use any court power to obtain their fees.

[Peterbard]

There is no legislation which says the council cannot"hang on to the proceeds "until any time they like, the bailiff may be aggrieved but that is a matter for them, it effects the debtor in no way.

 

All the TCE says is that the ammount outstanding is due to the bailiff, if they are not happy with the council retaining it, it is for them to raise complaint.

 

The requirement for proceeds to be apportioned does not happen until the sums raised are split at the end of the enforcement period, before the action goes back. It is not actioned piecemeal on every individual payment.

 

Just to correct you, the bailiff when collecting a council tax do not depend on the courts power, the the power is created by the enactment, the LGFA 1992.

 

Leakie said:

Well then DB

You have answered the OP's question.

 

If and it is only an if, they took the car, and the payment was made after the NOE had expired,and a new NoE had not been sent,

The OP has a point,

and Newlyns acted incorrectly,

 

Yes indeed and this is what i said earlier, his is the OPs only viable argument. But of course charges raised whilst the power was active(before the order was returned) are still due, so n this case they will still be due the compliance fee, if the way i interpret the situation is correct.

[unclebulgaria67]

Just to correct you, the bailiff when collecting a council tax do not depend on the courts power, the the power is created by the enactment, the LGFA 1992.

 

That really is a politicians answer.

 

Liability orders were part of the legislation and the legal instrument to provide to Councils via Magistrates to collect CT tax liability owing.

 

Without L/O's there is no legal instrument or power for EC's to collect tax liability on behalf of councils.

[Peterbard]

No it is a correct answer.

 

If you look at section 62 of part 3 of the act it says how the enforcment power is conferred, either by warrant or writ or by enactment, this is by the latter.

 

Warrants and writs are orders of the court, enactments are acts of parliament. the Liability order does not order payment (it just says the ammount is legally due) the enactment does. Section 14 (5) of the LGFA 1992

[Bru911]

sent this email to Newlyn :

To whom it may concern,

 

Council tax reference:

Account Number: *******

Newlyns reference: *******

 

Taking Control of Goods Regulations 2013

9.—(1) Subject to paragraphs (2) and (3), the enforcement agent may not take control of goods of the debtor after the expiry of a period of 12 months beginning with the date of notice of enforcement.

 

The Taking Control of Goods (Fees) Regulations 2014

17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.

 

 

Date of notice of Enforcement: 19/08/2015

Date of Control of goods Enforcement: 10/10/2016

Bailiff in charge:

Francis Valentino Okwese Dartford County Court 31/03/2015 30/03/2017 Newlyn plcGrounds of complaint to Form EAC2

 

Vehicle Registration *****

 

IMMOBILISED AND REMOVED 10/10/2016

 

The date on the Notice of Enforcement is more than 12 months, enforcement ceases to be lawfully valid.

I require said vehicle to be returned or further action will be taken.

 

Please refrain from disposal of said vehicle as this matter will be taken further due to non compliance to The Taking Control of Goods Regulations legislation 2013 and The Taking Control of Goods (Fees) Regulations 2014 as set out.

 

 

Regards

 

 

Received today from Newlyn in response:

 

Good Morning Mr ******,

 

Thank you for your email received 10 October 2016, the contents of which have been noted.

 

Newlyn PLC has reviewed your file and have found that you have no case in law regarding your allegations that the Liability Order issued against you had expired at the time your vehicle was taken into control on 10 October 2016.

 

In accordance with the Notice of Sale issued to you on 10 October 2016, copy attached for your reference, the vehicle will be sold on 24 October 2016, unless you make contact with the Enforcement Agent or myself via this email address, to make arrangements to pay the outstanding debt, including any storage payable, by close of business tomorrow 13 October 2016.

 

The outstanding sum owed on the Liability Order is £420.00, and storage is charged at £40.00 per day by the storage facility from the date the vehicle was taken into control. If you wish to stop the continued enforcement, and subsequent sale of the vehicle, please ensure you contact the Enforcement Agent in control of your file, Mr Okwese on 07415309*** to make arrangements to pay; failure to do so will result in the sale of the vehicle, the proceeds of which will be used to discharge the debt.

 

Any legal action taken against Newlyn PLC, its Clients or its Agent will be vigorously defended and in the event you are unsuccessful, costs will be sought from you.

 

I trust this clarifies our position in this matter,

 

 

It looks like whomever noted my email, could not read that I specified notice of enforcement letter and read the email to be "allegations that the Liability Order issued against you had expired" which was completely not mentioned in any way.

 

I am awaiting the correspondence from the council and will seek guidance once all the documentation is in.

[Leakie]

Well they are not taking you seriously

 

I would just do a section 85, at this point as it is free of any charge, and when this is turned down go to court,

You seem confident looking at the posts,

Obviously still need it in writing of what the council have stated that the LO is paid.

But now time is of the essence,

 

Also I was of the understanding that the sale had to be no longer than 7 days so the charges do not rack up,

this will be more than the value of what they will get at auction, with the £420 charges to date and just from today in storage it will be a further £680. so this will bring the total to £1000 as of today plus the storage up to today, I think you said the upper value was £1500.

 

Good luck because if they have got this wrong it will cost them,

[Bru911]

The council are sending the documents 1st class so should in by Friday at the latest, when I will proceed with the section 85.

[Leakie]

That is great,

I am not sure how a section 85 has to be set out,

But good luck anyway

[Peterbard]

Can I just clarify. Was the taking of the car the first time they called on you?