Council Tax - "14 day Letter"

[Peterbard]

The current situation is that a council are not required by law to give notice that bailiffs are about to be engaged.

Well, really that is the end of that as far as any required action by the council or authority. Even if the GUIDLINE states and means what you say it does

 

However, Paragraph 10 of the National standards states:

 

Creditors have a responsibility to tell the debtor that if payment is not made within a specified period of time, action may be taken to enforce payment.

 

This says that creditors[ have a responsibilit]y hardly an order. It says action may be taken it does not warn of an imminent action of bailiff enforcement.

Also, there is a big difference between May and Must. In additions, there are many earlier warnings which the debtor has already received which would fit this criterion.

 

This effectively means that an authority are still required to give notice that enforcement action may be taken unless payment is made.

 

Sorry, I don't see that at all.

 

Practice Note 9 (4.4) Of Government guidance on how to put into effect the Council Tax (Administration & Enforcement) Regulations 1992 states:

 

Up to date information about those whom liability orders are obtained is an important first step in identifying which method of recovery is appropriate in each particular case

 

This says nothing about any warning notice

 

Finally, there is also an onus on the council to notify a debtor that a liability order has been obtained. To plough straight in with bailiffs may well not be unlawful but it would certainly be of great interest to the LGO.

 

You say this, but have still not provided any proof of where this is.

 

A council are already required to send notice after obtaining a LO. It might just as well be a 14 day letter - It costs no more and no less. The old system seemed to be working quite well and I see no harm in it continuing.

There is no compulsory letter if you are talking about the request under section 36, that can be sent at any time after a liability order is made, even after enforcement and is not compulsory in any case.

 

36.—(1) Where a liability order has been made, the debtor against whom it was made shall, during such time as the amount in respect of which the order was made remains wholly or partly unpaid, be under a duty to supply relevant information to the billing authority on whose application it was made.

 

 

However, it is important to remember that as it stands, a council are still required to write to the debtor to obtain information and also to warn them that enforcement action may take place if the debt remains unpaid. It doesn't have to be written in legislation because the council will be answerable to the LGO if recognised guidance is not followed.

 

Again you say this, but still, have shown no proof?

 

 

See above

[Peterbard]

I think in this case it is about understanding wht the guidkine says. But i am sure it will be facinating

[Peterbard]

Sure it says I think in this case it is about misunderstanding what the guidance says. But I am sure it will be fascinating.

 

As always I am here to advise, went you fail to understand.

[ss002d6252]

In summary;

There is no requirement in Council Tax legislation to inform the debtor of a liability order having been granted except by virtue of the required notifications issued when the form of enforcement is undertaken (reference to the liability order is required as part of the action being taken,).

 

The National Standards on taking control of goods makes it clear that "This national guidance does not replace local agreements, existing agency codes of practice or legislation" and "We recognise this document is not legally binding".

[Peterbard]

Yes, I agree and whats more in this case the NS does not attempt to do so anyway.

 

This is another case of misinterpretation of rules. Starting with a premise and then distorting legislation and guidance so as to support the mistaken belief.

[Peterbard]

It is a vague statement and does do not specify when or how any such notice should be given. There are various notices sent before the liability order is issued including the summons, which I believe mentions the various enforcement methods. All of which will say unless a payment is made in full etc ;

 

It could be said for instance that the leaflets available or statements on the website could give warning that such an action is possible if the debtor does not pay, in fact, most do.

If the guidance made a specific provision as you claim, it would say so succinctly, I would have thought.

 

In any case, as there is no requirement in law, and there is no instruction as to what the creditor MUST do, ....

[ss002d6252]

So, regarding the bit in bold that I have highlighted, what would you consider to be a prior notification after a LO has been obtained then?

I never mentioned the word 'prior' - that's because the regulations don't need it. The notification happens when an enforcement action is used (i.e. the enforcement agents 7 day notice or the attachment of benefit letter).

 

It seems pretty reasonable to me to give warning before entering on a course of action, rather than just hijacking someone and adding to a financial burden that may already be spiraling out of control.

Reasonable is not a specific consideration of the legislation - no-one has said it wouldn't be ideal for the council to tell people, only that there is no legal requirement for them to do so.

[mariner51]

IMO the '14 day letter' is just the LBA notifying the debtor he has 14 days to settle the debt to avoid 'further legal action'. No specific method needs to be mentioned, but LBA should precede any Liability Order.

[brassnecked]

I would be fascinated to know what a "facinated" is. Seriously Enforcement is sooo last Century. Burly bailiffs dressed like coppers or Paramillitaries scaring the excrement out of poverty stricken people and single mums for debts they cannot afford even before the bailiffs add £75, then £235 in fees.

[Peterbard]

Lol yes, I will tell you if you tell me what "Paramilllitaries" are.

[Bailiff Advice]

 

When the new legislation was being drafted, it could well have been the case that it was determined that having Regulation 45A of the council tax regs still in force was not in line with unifying enforcement - After all, all the information that was provided on the 14 day letter is now required to be provided on the Notice of Enforcement. The major difference being that by the time a NoE has been issued, the debtor has incurred an additional £75 in bailiff fees, without first being given an opprtunity to address the debt.

 

An alternative theory is that the omitting of Regulation 45A was what is known as an "unintended consequence" of the new legislation.

 

My personal feeling is that it is a combination of the two.

 

The 14 day letter could easily be amended to omit the word distress and replaced by wording such as "we may take one of the enforcement steps available to us"

 

After all, it wouldn't harm to notify a debtor that an attachment may be made against him (which would involve his employer knowing that the employee was in debt)

 

In response to your theory:

 

As somebody who took part in almost 8 years of the consultation on bailiff reform, I can assure you that as disappointing as it was, the revocation of the 14 day letter (Information Preliminary to Distress) in 2014 was not an 'unintended consequence'. It is also not an amendment that was imposed by the Ministry of Justice. The removal was one requested by the Department for Communities & Local Government.

 

My personal opinion (and one that I have mentioned frequently on this forum) is that it was a wrong decision but it is one that nonetheless we have to live with. Will it be 're-introudced' into regulations? From meetings and discussions that I have been involved in.....NO (sadly).

[Bailiff Advice]

 

Practice Note 9 (4.4) Of Government guidance on how to put into effect the Council Tax (Administration & Enforcement) Regulations 1992 states:

Up to date information about those whom liability orders are obtained is an important first step in identifying which method of recovery is appropriate in each particular case

 

 

This thread that you have started is a very confusing one indeed as it refers not to legislation, but to advice given in 'Practice Notes' issued many years ago and your personal opinion on their content.

 

For visitors to this thread, following the implementation of the Council Tax (Administration and Enforcement) Regulations 1992, the DETR (Department for the Environment, Transport & the Regions) as it was then, issued 'practice notes' to local authorities to advise on the interpretation of legislation and administrative functions etc.

 

While these 'practice notes' are very informative (I have copies of most of them) it needs to be made clear that they were produced for guidance only…...have no force in law…….. and local authorities were not bound by them (this has been confirmed by a well respected Barrister specialising in local taxation).

 

These practice notes were also not endorsed in their entirely by the different agencies responsible for their preparation (including the Department for the Environment and Association of Local Authorities).

 

It was in 1997 that local authorities (and other agencies) responded to a Consultation issued by the DETR and the outcome led to a '14 day letter' (Information Prior to Distress) being introduced into the council tax regs in 1998. Sadly, the requirement for a local authority to issue a '14 day' letter' was revoked from the regulations in April 2014.

[ss002d6252]

The same point that seems to keep coming up again and again, and in deed keeps up going around in circles, is the difference between guidance and legislation.

 

Whilst the various CTax practice notes (and National Standards) can be helpful (and they've helped me out a few times over the years) they can only provide guidance on how the DCLG etc etc would like something to be interpreted, they cannot override legislation itself.

 

 

This is a very important provision and prevents legislation being played around with simply by issuing guidance to a department. Unless there was a statutory provision that the guidance was to form part of the legal process, as is the case, for example, with the CPR's, then they can never be more than guidance.

 

While it would be nice for the notification of a Liability Order being granted to be a legal requirement until the legislation is changed there is no requirement for the Local Authority to go beyond the statutory requirements to notify the debtor.

 

Why in God's name do you think a facility to request further information has been added if it can simply be ignored?

As it stands the Regulation 36 notice is no more a requirement than using an Attachment of Earnings Order - i.e it is optional.

 

Yes, having the debtors financial information can be handy and is a sensible option - I used to issue the Regulation 36 notices in as many cases as possible to get the details as it makes decisions far easier- but it is not a requirement to do so.

[Bailiff Advice]

 

Craig - You also really need to try to understand that the NS are issued by the MOJ, NOT the DCLG. In case you need reminding, the MOJ are the people responsible for the entire enforcement procedure. I think it's a safe bet to assume that THEIR guidance on how they want THEIR legislation to be interpreted will be the correct one.

 

Your really are confusing matters on this forum and your posts are becoming very embarrassing.

 

For the avoidance of doubt, with very minor changes indeed, the National Standards are almost identical to the National Standards for Enforcement Agents from 2002 and issued by the then Lord Chancellors Dept.

 

Those standards had been introduced with assistance and endorsement of the following:

 

 

The Association of Civil Enforcement Agencies

 

The Advisory Group on Enforcement Service Delivery

 

The Certificated Bailiffs Association

 

The Child Support Agency

 

The Civil Court Users Association

 

The Court Service

 

The Department for Transport, Local Government & the Regions

 

Her Majesty's Customs & Excise

 

The Inland Revenue

 

The Institute of Revenues, Rating & Valuation

 

The Local Authorities Civil Enforcement Forum

 

The Local Government Association

 

The Sheriffs' Officers' Association

 

The Under Sheriffs' Association

 

PS: The Department for Transport & the Regions (DETR) became the ODPM (Office of the Deputy Prime Minister) and then finally, the DCLG (Department for Communities, and Local Government).

[ss002d6252]

Whether or not a Local Authority decides to use an AOE or an Enforcement Agent is entirely their choice - if they decide to withdraw and use an AOE instead then that is purely for their ow reasons.

 

Over the years I have withdrawn hundreds of cases from enforcement agents and instead used AOBs / AOEs simply because it was the better form of action to use all round. Yes, if an Regulation 36 had been replied issued (in most cases it was though and had been ignored) then Local Authority policy was use to the AOB/AOE if it was the better option but the choice was purely that of the Local Authority and how they decided they wanted to play it.

 

You could ask the Local Authority to withdraw whatever action they've taken and replace it with another form of action at point, whether they do so or not is their prerogative.

 

By all means you're free to argue your point but stating that legislation is overruled by guidance and policy is misleading in the least when you're offering it as a way for people to dispute action that has been taken.

[Mo Farah]

Craig, legislation does not prescribe which method of enforcement must be used in which order only how each method is used. Instead the NS and guidelines say that before jumping straight in to using bailiffs other methods should be considered.

 

If they have been considered and rejected, the LA should explain why. If they haven't been considered then a complaint is warranted.

[Bailiff Advice]

Legislation does not prescribe which method of enforcement must be used in which order only how each method is used. Instead the NS and guidelines say that before jumping straight in to using bailiffs other methods should be considered.

 

Please note the following from a well respected Barrister specialising in council tax law after a Liability Order has been obtained:

 

'The local authority may decide which recovery method it wishes to use in each case and may use it more than once, but it may not pursue more than one method at any one time'

[Mo Farah]

Let's see the whole paragraph missus, not just your cherry-picked version.

 

It seems to offend you greatly that we are trying to fight the debtor's corner. Why is that? Or do I need to injunct you for a mandatory reply?

[Mo Farah]

Like has been said many times, any argument to fit the agenda of the day. So the practice notes are of the utmost importance if she uses them but to be dismissed if you do. What is wrong with these people?

[Peterbard]

There is no precribed order to whhich enforcement powers are used.

 

Many who are in this position will not be appropriate for any other kind of enforcement the uthority will not be confined to a course of action which is not appropriate. Nor will any Ns say they should be.

 

Section 36 is clearly written to avoid any implication that an authority is bound to employ it.

 

Like has been said many times, any argument to fit the agenda of the day. So the practice notes are of the utmost importance if she uses them but to be dismissed if you do. What is wrong with these people?

 

It seems to me that this comment would be more accurately levelled at you.

[Bailiff Advice]

Evidence please BA

 

Besides, even if the comment had been made, nobody disputes that this is the case....AFTER a request for FI has been obtained.

 

You are incorrect I'm afraid. A request for financial information is one of the 'recovery methods' available to the local authority following the granting of the Liability Order.

 

The quote is from the well respected Barrister; Alan Murdie. Here it is in full:

 

Recovery methods (England and Wales)

 

The Liability Order gives the local authority the power to:

 

Obtain information about the financial circumstances of the debtor and thus access the best course of recovery action

 

Make an attachment of earnings order

 

Apply to the Department for Work & Pensions (DWP) for deductions to be made from the debtor's income support etc

 

Use bailiffs to seize the debtors goods

 

Apply for a Charging Order against the dwelling in respect of which the debtor's liability arose

 

Apply to bankrupt the debtor (if s/he is an individual) or to wind up the debtor's company (if the debtor is a body corporate)

 

The local authority may decide which recovery method it wishes to use in each case and may use it more than once, but it may not pursue more than one method at any one time'. In the case of joint liability, it may pursue only one person at a time. So, if for example, one of the joint taxpayers is the subject of an attachment of earnings order, the local authority cannot seize the goods of the other'.

 

On the matter of 'practice notes' Alan Murdie has this to say:

 

While the legislation is binding on local authorities, neither the practice notes not the implementation letters have the force of law and local authorities are not bound by them.

[Peterbard]

You repeatedly refuse to understand that the procedure for issuing letters is prescribed, it is, therefore, a legal function. The LGO has no legal power to say this is maladministration.

 

 

Same with the section 36 letter, it would be easy for the regulators to have said a letter should be sent out before enforcement, they chose not to. The LGO cannot challenge that choice.

 

As for stretching stupidity, it is your argument so you tell me.

 

It is, of course, true that authorities do take cases back for a variety of reasons, reasons which are discovered within the enforcement, not because of some claim of maladministration before the warrant was issued.

 

The point Is, despite your theorising, there is no requirement to send a warning before bailiffs they are selected, there is a warning of course before they visit, but that is under the enforcement legislation

 

It costs around £1600, to issue a bankruptcy petition and of course unless the debt is over £5k it is not possible anyway. So please let's stick to one subject you know nothing about.

[ss002d6252]

What is more contentious is the request for further information and I accept that some councils think they don't have to send this because like Craig, they believe that they are not legally bound.

Which is spot on, because they're not legally bound (The issues raised were brought up to a Barrister when I was working for a council and they came to the same conclusions - although at the time the council did put the request for information and bailiff notice in the same envelope as they decided it was the way they wanted to work)

 

If it was a legal requirement there would have been more than High Court case on the matter by now... (to save people checking, there are precisely non recorded in the case reports held by Lexis)

As demonstrated above, they are required via the guidance to send a request out - Failure to do so will 99'99% end with an LGO decision against them.

Again, the guidance suggests information is gathered and notification is made but it's still only guidance, no matter how you try and dress it up.

[Bailiff Advice]

Thank you BA.

 

We know that the LGO has publicly stated that she will consider it maladministration if guidelines are not followed.

 

I assume by this comment that you are referring to Dr Jane Martin. If so, she retired from the LGO a long while ago.

 

As I said earlier today, since the new regulations came into effect in 2014, I have read each and every decision from the Local Government & Social Care Ombudsman's office in relation to complaints concerning 'bailiff's' and I am still struggling to fine one where a finding of 'maladministration' had been made against a local authority for their failure to observe 'guidance'. I will continue looking. Maybe there is one....if so, it will certainly be a very rare decision.

[AndyOrch]

In view of the RPs received that certain posters have taken umbrage to today's discussed points I have removed all posts and reverted the thread back to yesterdays state.

 

Regards

 

Andy