Bailiff Trying to take my car

[n00nie]

Hello,

 

I've had my car levied on two council tax accounts (I have two notices of distress i think they're called).

 

I have not signed anything or let the bailiff in.

 

One account has since been returned to the council (because they screwed up my single person notification) for the current year and I have a monthly agreement, but the other is still outstanding and remains with the bailiff.

 

The bailiff still has a balance for the one that has been returned to the council, which is just charges. Can they still chase that?

 

The car on my driveway is not registered in my name, in fact its still registered in the name of the previous keeper. I bought the car on finance, but the finance was arranged through my employer as an employee car loan, the local council (different one to the one pursuing me!). Is this grounds to stop the bailiff taking my car?

 

I've got the name of the bailiff and I'd like to check if he's certified - apparently there should be a sticky with information on how to do this, but its no longer there (unless i missed it) or previous posters have been instructed to pm tomtubby which I am not able to do either.

 

Here's what i'm going to do (please tell me if i'm wrong).

 

1) write to bailiff to tell them that the car is subject to a finance agreement and they can get lost with their levy and refund their ridiculous charges

2) tell them i have no intention of paying their fees on the first account as it was sent to them by the council in error

3) write to the council to offer to pay £5 per week which is realistically what i can afford if i'm to keep up repayments on this account

4) complain to the court if the bailiff isn't certified.

5) ignore the bailiff / challenge the fees / ?

 

Thank you!

[surfaceagentx20]

n00nie,

 

By saying the car is on finance, I assume you mean that you are in possession of it under a hire or hire purchase agreement? Not simply that you took out a loan agreement and used the loan to buy the car?

If the former, the vehicle is not your property. If the latter, it is.

 

I'd be very careful about advising the bailiff that the car is subjecto to a hire or hire-purchase agreement. He is likely to demand proof that it is and contact the finance company for confirmation. In most CCAs, there is provision for the creditor to terminate the agreement if the debtor should 'suffer a distress'. Having a bailiff come round your house to recover council tax is exactly that. He is executing a distress warrant. Notifying the bailiff that it is on finance should be left until other get arounds have been tried and failed.

 

Is it true that the car is the property of the registered keeper? If not you would be on dodgy ground to say that it was. You say so at your risk. If it is, tell him, the true owner and the council in writing, and point out to the council that unless they direct the bailiff to release the vehicle, what are known as interpleader proceedings will follow, in which proceedings the council will be at risk of an adverse costs order should the proceedings determine you are not the owner. The bailiff ought to tell the council that as well.

 

Back to the present, the bailiff has levied on the car and theatens to remove it for sale unless the debt is paid. Do you require the car for the purposes of your employment? By that I'm not asking if you use it to drive to work. What I mean is do you actually use it in order to fulfill your duties under the terms of your employment and which would make the fulfillment of those duties impossible or impractical? If the answer to that question is 'Yes', you should issue the bailiff with a written statement to that effect, explaining what you are required to do and how being deprived of the car would make the fulfillment of your duties impossible or impractical. The bailiff will need to then make his own assessment and in a proper case he should withdraw from walking possession of the car. If in a proper case he declines to withdraw, warn him that continuing to decline to withdraw will lead to proceedings for an injunction restraining him from continuing to hold the car in walking possession. Then get off to a lawyer who can assist under the legal aid scheme or whatever it's called now.

 

Perhaps the bailiff is going over the top. By that I mean the amount he is instructed to recover will easily be realised from the proceeds of sale of any other property he has seized. Having said this, (something to cook food, clothing and bedding aside) you are not in a position to direct what property of yours the bailiff may or may not seize.

 

If you are unable to make such a statement of need in realtion to the car I fear your options are limited to coming to a sensible repayment arrangement with the bailiff. If you fail to do that, having seized the vehicle, the bailiff is likely to remove it. Removing your car is likely to lead to the termination of any hire or hire purchase agreement. Plus you will be landed with 'the reasonable cost' of the bailiff providing the means of removing it. It is not unknown for such a cost to be £2-300.00 or so.

 

Do not ignore the bailiff. If you ignore the bailiff he wil ignore you and simply execute the warrant.

 

I imagine he has informed you that he will be returning shortly. Is there much time left?

 

Any queries, let me know.

 

X20

[n00nie]

Hello, thank you for your response.

 

I've got til tomorrow.

 

The car is used during the day for my commute to work (and occassionally for work) but during the evenings I use it for my mobile computer repair business, which would be impossible on public transport.

 

The car is only registered in the name of the previous keeper because it looks like the previous keeper has forgotten to send the DVLA form in. The finance agreement was specifically to buy the car and was arranged by my employer, my local authority (not who I pay council tax to). It wasn't a personal loan, they paid the seller directly. The car isn't worth much at all (probably 800 quid on a private sale, far far less at auction - its worth more to me because I need it for my business, and won't be able to pay off any arrears without it). The amount outstanding to the bailiff is £700 ish.

 

I also had another car on my driveway when the bailiff arrived which was also levied, but that is my friends car which is on my drive because he has a new one and can't fit it on his. It's registered in his name, so presumably a declaration says it's his will suffice? My friend doesn't know my situation and I'd rather he didn't so I'm a little embarassed to ask him for his log book to prove the car isn't mine.

 

The bailiff has not had access to the house to levy on anything else, nor will I give him access.

 

So my questions are:

 

1) Do you know of any templates for the letter asking the bailiff to drop the levy because I need the car for my business?

 

2) If I keep it in my garage (time to do some clearing out) will that stop him taking it, and can he break in to get it?

 

3) Realistically £5/ week is all i can afford, my mortgage payment & mortgage arrears & current years council tax & arrears comes first, i'm not living a flamboyant life, just keeping my head above water, after a nasty split up with my wife, so I can't pay more without stopping essentials such as food & fuel for work. I have two kids, 4 and 1 to feed and I don't believe the bailiff will take this into account. Should I negotiate with the Bailiff or the Council?

 

4) How many times will a bailiff come back before he gives up?

 

5) Can he just keep adding charges each time he visits?

 

Thanks

[surfaceagentx20]

1 No I don't know of any templates. Say what needs to be said. It occurs to me that if you are self-employed and need the car, perhaps your accountant can issue a short statement to that effect?

 

2 No and Yes

 

3 Negotiate with the bailiff (the council won't listen)

 

4There's no fixed number. In my experience he'll keep coming back so long as he believes you'll pay his fees for doing so.

 

5 No he can't although he'll try to. The bailiff's charges are fixed by The Council Tax (Administration and Enforcement Regulations) 1992 Schedule 5. Google that and check the bailiff is limiting his charges to what is allowed.

 

x20

[letsmakeamark]

Bailiff can only charge for 2 visits unless he sees sombody or has levied against your goods. I would buy a rust bucket of a car and park it in my drive and let the bailiff levy against it.

[surfaceagentx20]

The charges are set by the Regulations I mentioned earlier. Attached is a statement of those fees as they appear in Schedule 5.

 

x20

bailfees.pdf

[n00nie]

Thank you for your advice.

He has levied against the cars on my drive, has not been in my house, and not signed a WPA. I am putting the car in the garage to make it more difficult.

 

So far I've:

 

1) Sent a letter by fax asking them to return the account to the council because I would be classed as vulnerable as i'm a single parent.

 

2) sent a letter by fax saying my car is required for my business on a daily basis and therefore exempt from being levied.

 

3) sent a letter by fax saying my mates car is not mine and therefore cannot be levied.

 

4) sent an email to the council saying i'm considered vulnerable as i'm a single parent asking them to take back the account, offering a realistic payment arrangement.

 

Thanks

 

n00nie

[surfaceagentx20]

You need to be careful. You explained the bailiff had levied.

 

Where the bailiff has levied he either [1] removes the goods levied, [2] leaves a man in charge of the goods (close possession) or [3] leaves the goods without a man in charge conditional upon an undertaking from the debtor that the goods will not be moved, sold, pledged etc (walking possession).

 

If the bailiff has done none of these things he hasn't levied. If he has levied he has powerful rights.

 

Before we decided for sure he has or hasn't levied, please tell me what was it that caused you to believe he had levied on either of the two cars?

 

x20

[n00nie]

I received a "notice of distress" posted through my door and on there under the inventory were the make & model & registration of the cars.

 

He didn't remove the cars, didn't leave anyone in charge of them (or a wheel clamp) or receive the undertaking.

 

Definitely wasn't a walking posession order (it didn't say that on it) and I didn't sign anything nor was there a space to sign.

 

I will post more details when I get home as this is from memory.

 

Thanks

 

n00nie

[n00nie]

Hello,

 

I have just checked and the document is headed "notice of distress"

 

and says "notice of seizure of goods and inventory"

 

and says I have 5 days from the 14th to pay up or they will be removed and sold and lists an inventory which includes the two cars.

 

there is no place for me to sign, and nowhere does it say walking posession order.

 

And it includes a fee of £44 for levying.

[surfaceagentx20]

I would be somewhat perplexed by a situation where a bailiff executing a distress warrant for arears of council tax was entitled to regard goods as subje t to a formal levy where in truth, those goods had not been taken away from the premises and neither had arrangements been made to ensure the goods remained in the custody of the law by close possession or an undertaking given by the debtor to accept walking posession.

 

The whole idea of a levy is that the goods are by the act of seizure, taken into the custody of the law. The process involves three distinct stages [1] entry on to or into the premises where the debtor's goods are to be found [2] the seizure of the goods coupled with [3] the impounding of those goods, where the impounding requires the creation of a 'pound' and where the pound may be either the debtor's premises or place of security elsewhere. If the pound is the debtor's premises they are secured at the pound by either close possession or walking possession.

 

I accept I might be mistaken here and the rules relating to distress are notoriously open to misinterpretation. May be someone could point out any error in understanding I may have made. However, short of that, I hold to the view that in the absence of impounding, in truth what occurs where a bailiff seizes but leaves the premises without the goods is that he releases them out of the custody of the law.

 

Thus if you have not signed a walking possession undertaking I take the view the levy has not been completed.

 

Further, if a levy had been completed in accordance with the 1992 Regulations, under regulation 45 of those Regulations, the bailiff is obliged to leave at your premises [1] a copy of the text of regulation 45 [2] the text of the Schedule 5 rates of charges [3] a statement of the amount of charges raised by the bailiff under Schedule 5 and [4] a copy of any walking or close possession agreement.

 

If the notice lacks any of these things [1] to [3] above yet the bailiff has completed a levy, the failure to include all of [1] to [3] constitutes a breach of regulation 45 and [4] also, where there is close or walking possession.

 

I could understand a £44.00 levy fee under Fee B of Schedule 5. But if he were to raise a fee under Fee B as if he had levied, common sense suggests the bailiff would include other fees wherever possible to bump up charges. Bump up fees would be fees for visiting where no levy had been made (Fees A(i) and A(ii), total £42.50, and the release fee for another £24.50.

 

Combining the fact that the bailiff did not remove the goods nor did he enter into a walking possession agreement with you, on the assumption the notice does not include [1] to [3] at least, and the bailiff has not maxed out his potential for charging, I would be fortified in holding to the view the bailiff has not and in truth does not regard himself as in fact having completed a levy.

 

What else if anything is on the front AND THE BACK of the notice pushed through your leter box?

 

x20

Edited August 18, 2008 by surfaceagentx20

[n00nie]

Thats hard to follow, but it does look like they've done it a strange way round. He has included [1], & [2] . I presume [3] is the levy fee (see below) but [4] does not exist as I haven't signed or received anything else. This is the second visit, the first visit was just to say they had to take on the account and to settle it within 5 days.

 

This is exactly what it says on the front & I've summarised the back of the notice:

 

FRONT

===============

 

Notice of Distress

Notice of Seizure of Goods and Inventory

By virtue of the statutory regulations the council tax (adiministration and enforcement) regulations 1992 No. 613 (as amended) or as relevant for commercial charges rating and valuation the non-domestic rating (collection and enforcement) (local lists) regulations 1989 No. 1058 (as amended).

 

Under a liability order issued in the petty sessional division of the magistrates court

 

Reference Number: [reference number]

 

On the instruction of: [name of local authority]

 

Authority Reference: [authority reference]

 

To [my name & address]

 

Re: All remittance must now be payable to the Bailiff at the above address and NOT to the Council. Any money paid to the Council does not invalidate the costs due under this Order.

 

Amount for which this distress is made:

Arrears due to Authority: £XXX.XX

Court Costs Award by the Court: [blank]

Levy Free to scale schedule: £44.00

Statutory Walking Possession Fee: [blank]

 

Amount now due: £XXX.XX

 

TAKE NOTICE: That by virtue of an authority given to me by the above Council I have this day 14/08/08 seized and distrained at the above address the goods specified in the following inventory for the sum due for the arrears and costs under the Liabilirt Order issued to the Council in the Magistration COurt as shown above.

 

AND FURTHER TAKE NOTICE that unless the said amounts be paid inclusive of all the costs and chargers of this distress within 5 days from the date hereof: 14/08/08 the goods listed below will be removed and sold according to law.

 

The inventory to which the above notice refers:

 

[details of cars]

 

Signed [bailiff signature]

Date 14/08/08

Authorised by the local authority to enforce liability order by the Magistrates' Court

 

 

 

 

 

BACK

=====================

 

LEFT COLUMN:

 

Schedule 3 - Regulation 14(2)(b)

Schedule 5 - Regulation 45(2)(b)

Charges connected with distress

 

[This is a large table showing the matter connected with distress and the charge]

 

RIGHT COLUMN:

 

The Council Tax (Administration and Enforcement) Regulations 1993 - Regulation 45 (as amended).

The non-domestic rating (collection and enforcement) (local lists)

Regulation 1989 - Regulation 14 (As amended)

 

[This is 9 paragraphs entitled "Regulation 14 and 39"]

 

 

So what should I do? He's due to come tomorrow, still clearing out the garage to get the car in, no idea if they've received my faxes but did get an email back from my district councillor I wrote to and he's suggested I contact the head of revenue services... so job for tomorrow morning. Fingers crossed!!

[surfaceagentx20]

Yeah, I just re-read it and thought the same (hard to follow).

 

I really don't see a proper levy amongst all that lot, but let's review tomorrow morning and postpone our decision until then.

 

x20zzzzzz

[n00nie]

X20,

 

It wasn't a critisism, i'm just completely new to the laws & intricasies of levies, bailiffs & distress! You clearly know what you are talking about.

 

Thanks for all your help so far.

 

Left for work before 7am in my car, as usual, no sign of bailiff.

 

n00nie

[tomtubby]

ALL bailiff company's will carry out a search to ensure that the address on the Liability Order is still the valid address for the debtor and the company will ALWAYS run a DVLA check on a vehicle. For tis reason the bailiff and his company will already KNOW who the cars belong to.

 

We have posted the following many times on CAG as this situation on "levying" on a car in the driveway is VERY COMMON:

 

 

 

"Levying" on a vehicle that you do not own:

 

This is now also becoming commonplace with "less reputable" bailiffs, in particular when collecting for unpaid council tax. How it works is this:

 

The bailiff will make a visit to your premises with "a view to levying distress" (this is the legal term). He can charge just £24.50 if this is the 1st visit and you are not at home and no levy is made. In order to generate more income for him and his company,the bailiff will instead post a form through the door to say that he has attended and "levied" on a vehicle either on the driveway or on the road outside. The bailiff will then charge both an additional "walking possession" fee and a "levy fee". The bailiff knows that there is case law that provides that he can "assume" that the car is yours and that it is up to you....not him..... to prove otherwise .

 

Many times these vehicles are owned by sons/daughters/friends/even tradesmen etc. If this does occur, then I would suggest that you IMMEDIATELY write to the bailiff company to make them aware that the vehicle is not yours and that UNLESS they remove the levy you will be considering a formal Form 4 Complaint about the actions of the particular bailiff and that you will either be forced to provide a Statutory Declaration or better still, a Regulation 46 Complaint to the Magistrates Court. We have done many of these, but BEFORE sending to the court we have sent a copy to the local authority.......and in EVERY case the local authority have IMMEDIATELY agreed to release the levy!!!

 

Many more people are now aware of their rights, and are standing up for themselves and an application to the Magistrates Court under Regulation 46 to request the levy to be removed is becoming more common.

[surfaceagentx20]

Great information tomtubby,

 

I agree the bailiff will always try to max out his fees, but in this particular case the fee is said to be £44.00. It is difficult to get to a situation wher the fee is just £44.00 if the bailiff is really trying to max out his fee. As you say the initial fee of £24.50 is for a first visit with no levy. A fee of £18.00 can be raised for a second visit with no levy. A third visit will raise a levy fee (calculated by a convulated process based upon the tax arrears). After that he can charge a walking possession fee (if he arranges an agreement which invariably he will do if he is not going to take the vehicle away) and a release fee of another £24.50. All that lot will tot up to well over £44.00.

 

Additionally, we are told there is no man in close possession and no walking possession agreement. Yet the car's still on the drive. Or was up until n00nie took it to work this morning.

 

Do you agree with me that in this case a formal levy has not been completed and hence it could not be said that the car or cars are now impounded and in the custody of the law?

 

Advising on the way forward will very much depend on whether the cars are or are not in the custody of the law.

 

x20

[tomtubby]

The bailiff can indeed levy on goods "outside" the property. This is now commonplace.

 

The purpose of a first visit is to levy. If no levy takes place ( ie: you were not at home) then a fee of only £24.50 can apply.

 

If the bailiff does levy then he can charge a "levy fee" (ie: based on a percentage) but he CANNOT charge a fee of £24.50 as well.

 

A lot of bailiff's will of course ignore this, as they take the view that the debtor DOES NOT know the rules.

[surfaceagentx20]

Yes I follow that the bailiff may levy on goods outside the home. And I also follow that he apparently says he has levied. The question is whether a court would say he has completed a levy.

 

The key facts seem to be:

 

[1] n00nie was not at home when the bailiff visited

[2] the bailiff pushed a notice through the letter box but left without securing the car

[3] there is no close or walking possession agreement and n00nie was free to and did take the car to work this morning.

 

The necessary ingredients for the completion of a levy seem to be absent. A levy is not completed by entering the premises and pushing a notice through a letter box, surely?

 

x20

[n00nie]

Just an update on this thread - in the end the Council took back the account & bailiff never returned. I think it may have been following contact with district councillor talking to the head of revenue services. Or perhaps in reaction to my letters - I never got a response from anyone, just a new bill & set of installments.

[palomino]

Sounds about par for the course. No-one wants to admit to screwing up. Instead we'll just pretend it never happened.

 

At least life can return to normal.