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

[Bailiff Advice]

Bailiff Advice said:

I think that if you look at another site today you may view a template. It is certainly not one that I would suggest at all and if posters visit this forum for assistance, they will get the support they require.

 

After having reviewed this 'template' posted elsewhere it would seem ONCE AGAIN this is almost identical to one of six 'templates' that I had submitted during the consultation period in 2013. It was rejected, but strangely I sent a copy to another poster on this forum !!! It would seem that he has posted a copy of other social media sites.

 

Once again, the danger of providing suggested templates has been proven to be a mistake.

 

In anyone requires assistance, please start a new thread and you will get the support that you need.

 

As I said yesterday, this thread is quickly being turned into a'discussion' thread which is so sad. I do not intend posting further until more is known about the claim.

[Bailiff Advice]

UPDATE:

 

I contacted the OP (Bru911) to offer to assist him with a 'Part 85 Claim'. I have received many messages asking for an update. I have the permission of Bru to update the forum:

 

A claim was submitted to the enforcement company (Newlyn's) on 17th October. By this time, the vehicle had been in storage for 6 days and charges of £40 per day were being applied. These fees stopped when the claim was submitted.

 

A few days ago (23rd October) a response was received. The local authority agreed that they would authorise the release of the vehicle along the following terms:

 

All storage fees would be removed.

 

The 'Sale stage' fee of £110 would be removed.

 

The OP would be required to pay the Compliance fee of £75 and Enforcement fee of £235.

 

After discussions with Bru911, he has decided to reject the proposal. I respect his decision and wish him well.

[unclebulgaria67]

Are they still going to release the vehicle because the NOE was more than 12 months old ?

[Leakie]

Something does not sound right here,

 

The council have had some of the fee's cancelled,

 

Just guessing the council and the EC are trying it on as they know they have not followed the regs,

 

The council were probably asked for the remainder of the amount.

 

Good luck Bru please let us know how you get on.

 

BA you had a partial result, Why have you not followed through to the end?

 

Sorry by this I mean that the car should be returned,

regardless of if the enforcement fee and the compliance fee being paid or not.

so that he is put back in the position before the car was unlawfully taken.

 

The EC could the reapply and continue as it should have been done in the first place!

 

Also the EC/Council should pay any costed whilst the car was in unlawfully seized!

[brassnecked]

If he challenges they might go for not releasing and selling the car and going after the lot including Storage fees, the councils are a law unto themselves and will never admit they are wrong unless pressed.

 

Problem is even if Enforcement botched they will likely be left having to pay the EA fees themselves. We can only conjecture on a conclusion unless Bru comes back with further info.

[Bailiff Advice]

 

BA you had a partial result, Why have you not followed through to the end?

 

In earlier posts on the thread, Bru admitted publicly that he owes the bailiffs fees of £310. He has changed his mind on this and I have to respect his decision.

 

His option now is to challenge the decision in court (under CPR85) failing which, his vehicle will be sold.

 

There is nothing further for me to discuss.

[Leakie]

Thanks for getting back on this,

 

I would have thought that as the council came back, with the offer,

they must have realised that the correct procedures were not followed.

Otherwise they would have stuck to there guns.

 

I agree that the £310 is owed but even then Bru said that the first time he had any contact, or visit

was when the car was taken!

[Bru911]

I have not changed my mind on the fees owed., I should not have to pay to get my property back. Which was taken.

I want my property back without being strong armed into pay or we will not release your vehicle bailiff tactics when it should not have been taken in the first place under NOE letter and no agreement particular circumstances.

 

I am left puzzled Newlyn took the vehicle and the Part 85 claim went to them yet The council had the additional fees cancelled when i was under the assumption that the tow truck fees and storage fees are third party fees and /or the only fees left to collect £310 were the Enforcement company fees

Compliance fee of £75 and Enforcement fee of £235.

 

I am trying to get my vehicle returned as if the action of it being taken had not happened as it should not have happened if their documentation is out of date expired and the the law to enforce is invalid . After claim 85 has failed to return said vehicle without meeting the bailiff costs is there further action you would recommend

 

newlyn are still holding my vehicle which they should not have taken as they have no agreement to produce for me to have broken apart from the whisper in the air that i paid the council so somehow that is an agreement with the bailiffs.

 

When they get the certification every 2 years, they are asked to produce the documents they will use when enforcing and they show the agreement form debtors have to sign to say they had an agreement that has been broken so enforcement action took place , they now see that this document is not needed any longer. yo do not need an arrangement agreement

 

We dont need agreement forms anymore it is a subliminally aligned contract with pro rata payments from the council, all our payment arrangement are on auto pilot .. (no terms , no conditions , no amounts, no time scales but your on an arrangement ??)

[unclebulgaria67]

Sometime Bru you have to accept that you have to pay these fees and hold your nose. I agree with you that the process is wrong, but are you going to spend money going to court and having more time without your car ? I doubt that Newlyns are bothered and if you continue to refuse they will just sell your car. What you have to remember is that Judges are not all that independent and will question why you are arguing the toss. You had documentation about owing money to the council and NOE. A slight technicality such as the NOE being older than 12 months might not interest a Judge. They will just ask whether you owe this money or not.

[Peterbard]

The thing is, you are where you are. If the bailiffs refuse to return the vehicle on your terms, you will have to argue the point in court.

 

Newlyns are obviously aware of this thread, if you do intend arguing this in front of a judge, I would advise caution.

[Bru911]

I understand where you all are coming from. I just felt that technicalities whether slight or major were in place to allow the system to operate properly to a set standard. That is why I do not disagree with what fees firms are allowed to charge in legislation only that if legislation stipulates one thing then they cannot do another. if that slight technicality means bailiffs have to adhere to legislation as it is set out so be it.

[unclebulgaria67]

I understand where you all are coming from. I just felt that technicalities whether slight or major were in place to allow the system to operate properly to a set standard. That is why I do not disagree with what fees firms are allowed to charge in legislation only that if legislation stipulates one thing then they cannot do another. if that slight technicality means bailiffs have to adhere to legislation as it is set out so be it.

 

Do you have deep pockets to take it far enough to get the law clarified ? A county court judge is just going to ask whether you had received NOE and knew enforcement fees were due. The NOE and 12 months issue won't be considered, as i don't think it says that enforcement stops after 12 months or the NOE has to be reissued.

[Peterbard]

The section is open to interpretation, and despite some people's inability to understand the concept, it does not say "must",

It says may, which is not an unarguable statutory instruction.

 

Also I should point out that this will be held in a court of equity, with all that this requires.

[unclebulgaria67]

Deliberate, so if there is an error, it can be decided on later, whether it was a really important factor. Whether they thought about the issue of the NOE having an expiry date and covered it with vague language is open to question. If they wanted to be clear, they would have used must and tne NOE had to include an expiry date.

Edited January 11, 2022 by dx100uk
unnecessary previous post quote removed

[Peterbard]

Not an error , just exactly what parliament intended. There is a reason why legislation use must or may, or shall and should.

 

Basic statutory language. In this case they use, "may". Some of the reasons must is not appropriate are contained in the other subsections, which will have a variety of interpretations.

 

here, first up on google, may give a basic understanding.

 

http://www.plainlanguage.gov/howto/wordsuggestions/shallmust.cfm

[Bailiff Advice]

Bru,

 

You and I have discussed this matter 'off the forum' and as I have said on here, I have to respect the decision that you have made. Where I think you have gone wrong is in taking far too much notice of a comment made by the council officer that your payment to them had 'cleared your account'. This could never have been the case.

 

The payment that you made, was not the only payment. I think that you told me that you made a couple of other payments to the council as well 'within the 12 month' period of the warrant. Whether the council like it or not, they are under an obligation to ensure that when they received your direct payments they should have ensured that bailiff fees were deducted first. Their obligation to do this is under regulation 52 4 of the 1992 council tax regs entitled:

 

Relationship between remedies

 

Regulation 52(4):

 

 

Where a step is taken for the recovery of an outstanding sum which is or forms part of an amount in respect of which a liability order has been made and under which additional costs or charges with respect to the step are also recoverable in accordance with this Part,

any sum recovered

thereby

which is less than

the aggregate of the amount outstanding and such additional costs and charges

shall be treated as discharging first the costs and charges,

the balance (if any) being applied towards the discharge of the outstanding sum.

 

 

http://www.legislation.gov.uk/uksi/1992/613/regulation/52/made?view=plain

 

This clause re-inforces the position that local authorities receiving direct payments from debtors must ensure that bailiff fees are deducted first.

 

For the avoidance of doubt, there is no provision for anyone to compel the local authority to disregard the law and allocate payments in any other way.

 

PS: Slightly off the subject of 'direct payments, Regulation 52 is a vitally important section of the 1992 regs and one that enforcement companies and in house house bailiff operations hope will be amended shortly.

 

In keeping a previous comment of mine that this forum is the home of accurate information, I should add that the above Regulation 52 was slightly amended in April 2014 to provide that on the four occasions that the word 'distress' is stated that it be amended to state 'the Schedule 12' procedure.

 

For the avoidance of doubt, Regulations 52 has not been repealed.

 

Following slight amendments in 2014, Regulation 52 of the 1992 Council Tax regulations now reads as follows:

 

Relationship between remedies

 

52.—(1) Where a warrant of commitment is issued against (or a term of imprisonment is fixed in the case of) a person under regulation 47(3), no steps, or no further steps, may be taken under this Part by way of attachment of allowances, attachment of earnings, the

Schedule 12 procedure

, bankruptcy or charging in relation to the relevant amount mentioned in regulation 47(4).

 

(2) Steps under this Part by way of attachment of allowances, attachment of earnings, the

Schedule 12 procedure

, commitment, bankruptcy, winding up or charging may not be taken against a person under a liability order while steps by way of another of those methods are being taken against him under it.

 

(3) Subject to paragraphs (1) and (2)—

 

(a)attachment of allowances, attachment of earnings,or

the

Schedule 12 procedure

may be resorted to more than once, and

 

(b)attachment of allowances, attachment of earnings or the

Schedule 12 procedure

, may be resorted to in any order or alternately (or both).

 

(4) Where a step is taken for the recovery of an outstanding sum which is or forms part of an amount in respect of which a liability order has been made and under which additional costs or charges with respect to the step are also recoverable in accordance with this Part, any sum recovered thereby which is less than the aggregate of the amount outstanding and such additional costs and charges shall be treated as discharging first the costs and charges, the balance (if any) being applied towards the discharge of the outstanding sum.

[Peterbard]

The only facility that is withdrawn is to take goods under control, goods already under control can still be processed, this would not be the case if a power ceased as can existing arrangements be maintained.

 

This should probably be taken into discussion unless the op permits as BA said.

 

I will say though , that the debtor does not enter into an agreement or a contract. The act is very careful to avoid this implication, it is an arrangement. This in itself does not constitute a legally binding provision.

 

When a payment is made, there will naturally be discussion about when the balance will follow, the bailiff may say he will not pursue in the Interim. He will check to see if promised payment has been made if not he will continue. There is no actionable breach here.

 

As for the section it is designed to stop bailiffs sitting on accounts without making attempt to enforce, this is clear from the subsections egarding extensions.

 

Section ,52.4 is relevant when Enforcement is in house of course, as a few authorities have done in the last few years.

 

In that c ase there is no pro rata split, the apportionment of proceeds is just as the section states.

[Bailiff Advice]

To conclude,

 

This case highlights once again the pitfalls of paying a local authority direct and believing that in doing so, bailiff fees can be avoided.

 

As has been mentioned many times on this thread, it was wrong of the local authority worker to inform Bru911 that his direct payment cleared his account and that his balance was nil. This statement was inaccurate and hopelessly misleading.

 

Whether the payment is received by the enforcement company or the local authority, allocation of partial payments is not a matter of choice.

 

Regulation 13 of the Taking Control of Goods (Fees) Regulations 2014 directs all people, whether in a local authority or otherwise, how to allocate proceeds that are less than the amount outstanding.

 

The amount outstanding is defined as including fees and disbursements. Accordingly, any payment made that is not large enough to cover all the fees and disbursement due at the time, is less than the amount outstanding.

 

As soon as the instruction to enforce the Liability Order is received by the enforcement agent, the fee for the Compliance Stage is due and so the amount outstanding includes the £75 compliance fee.

 

If a payment that is less than the amount outstanding is made after the £75 has been added it represents proceeds that are “less than the amount outstanding” and so, by virtue of Schedule 12 50(4) and regulation 13 of the Taking Control of Goods (Fees) Regulations 2014, the payment must be allocated in accordance regulation 13.

 

There is no exception to this and neither is there any provision allowing the local authority to disregard the law and allocate payments in any other way.

 

 

PS: Unless anything further materialises, I do not intend contributing to this thread any further.

 

Bru911 said:

 

I did not enter into a payment agreement with Newlyn. I know what a payment arrangement form looks like i did not enter into one with Newlyn or anyone.

 

 

Bru911 said:

Section 9 seems very clear and straight forward. I do not feel I have mis interpreted it in any way.

 

The only point that it seemed to bring up, that has been mentioned, If I am correct is that paying the council can be regarded as entering into an arrangement with the bailiffs.

 

I did say that I would not comment any further on this thread but this comment is a vitally important one.

 

Bru may well be getting confused between a payment arrangement and a payment agreement.

 

A payment agreement would be of the type outlined under a Controlled Goods Agreement.

 

No one knows what is needed to constitute a payment arrangement of the sort mentioned under Regulation 9 of the Taking Control of Goods Regulations.

 

During the lead up period to the regulations taking effect (in 2014), the MOJ were asked what constitutes a payment arrangement. Their answer was simply that it would be for enforcement agents to take their own legal advice.

 

A dictionary definition of an arrangement illustrates that the debtor does not necessarily have to agree to it.

[unclebulgaria67]

I would suggest an arrangement is simply where the EC has received a communication after NOE offering x per week/month and they have accepted without a CGA. They then don't feel the need to attend for an enforcement visit unless the arrangement is broken.

 

If there has never been any arrangement with the EC and payment was made to a council directly during the 12 months of an NOE, which an official of the council has accepted as full payment of an l/o, then i don't see there can be continued enforcement after 12 months including seizing a car on a public highway. But as i doubt Bru is going to go through a court hearing to challenge the legal position, then it Is all a bit academic.

 

The legislation needs to be revised to make the process clearer.

Edited January 11, 2022 by dx100uk
unnecessary previous post quote removed

[Peterbard]

Yes that is correct as I said in 197.

 

It is odd how people see the word arrangement and read agreement, the two things are entirely different

[Leakie]

Just had a re read of the first part of the thread.

 

Key dates

 

NoE dated 16-08-15

 

Payment 03-08-16 ( payment made to council less EC fees)

 

Car seized 19-08-16

 

So it looks like not quite the 1 year for the NoE.

 

But as has been stated in the past on other threads,

The £75 is due when the council passes it over to the EC so this must be the start of the NoE .

 

may be a bit of leeway there?

 

To me Bru it Looks like you are in a grey area,

 

How much is the car worth?

 

I think it is cut your loses and pay the £310, get your car back.

 

or let them keep the car,

 

I do not think you will win on this one as it is a grey area with the dates,

for a strong case.

 

What ever you do I wish you luck,

In my opinion the regs are too one sided for the EC,

 

leakie

[Peterbard]

UB Said:

 

Quote

If there has never been any arrangement with the EC and payment was made to a council directly during the 12 months of an NOE, which an official of the council has accepted as full payment of an l/o, then i don't see there can be continued enforcement after 12 months including seizing a car on a public highway. But as i doubt Bru is going to go through a court hearing to challenge the legal position, then it Is all a bit academic.

 

 

This seems like a misconception which just will not go away, no matter how many times it is explained.

 

A payment made whilst the enforcement is with a bailiff, is due to the bailiff and not the council.

If they accept it, it is just on behalf of the bailiff.

 

So a payment made to the council at this time, is a payment to the bailiff.

[Leakie]

This is why I said about the dates and a grey area,

If Bru had paid 2 weeks later then the NoE would have expired,

and anything happening would have been unlawful and he would have had a stronger argument.

[brassnecked]

Then his bad timing has cost him dear.

Edited January 11, 2022 by dx100uk
unnecessary previous post quote removed

[Bailiff Advice]

FINAL UPDATE !!!

 

We have finally reached an agreement with the local authority and their enforcement agents; Newlyn Plc.

 

As viewers will know, Bru's vehicle (which is valued at around £1,900) has been in the enforcement companies car pound for almost one month.

 

Bru will be collecting his vehicle on Tuesday (8th November). He has agreed to pay the bailiff fees of £310 (Compliance fee of £75 and Enforcement fee of £235).

 

Newlyn Plc have agreed the cancel the removal fee of £110 and all storage fees.

 

With regards to the payment of £310, this sum is to repaid by way of three monthly payments with the first instalment payable on 8th December.