swift bailiff and CTAX debt has levied on my car

[reallyinthecrap]

this is the latest email from the Vale Of Glamorgan.

 

I need to put together a response to the follwing... Plus it looks like I have until Wednesday to come to an "arrangement" which includes the charges.

 

DearMr XXXXXX

Re: Complaint – Council Tax Enforcement

Irefer to your e-mail dated the 15th May 2012 and note your commentsthat you intend to contact the Public Services Ombudsman for Wales.

WhilstI understand that you are unhappy with the fees of £245.00 imposed as a resultof the action taken by Swift Credit Services this has no bearing on your counciltax arrears of £369.61 which are due and outstanding. In addition I note thatyou have been advised on several occasions that the fees are specified inSchedule 5 of the Council Tax (Administration and Enforcement) Regulations 1992and that if you feel they are unreasonable then they can be challenged by wayof an application to the County Court. I must inform you that in the meantimethe costs incurred are payable.

Ialso note from my records that the amount of £369.61 relates to the 2011/12financial year and is covered by a liability order issued in the Vale ofGlamorgan Magistrates’ Court on the 9th February 2012.

Youwere also advised by Mrs XXXXXXXX in her email dated the 24th April2012 and my letter dated the 30th April 2012 that your complaint wasnot upheld as no evidence could be found that the bailiff had actedincorrectly.

Iwould therefore remind you that it is your responsibility to ensure that yourpayments are made on the due dates and whilst this matter is ongoing you mustcontinue to pay your council tax as required by Government Regulations. As aresult unless you contact the Council within 7 days in order to make asatisfactory arrangement to clear the full balance, including all costs, thenfurther recovery action will be taken.

I trust that this letter clarifies the position.

Yourssincerely,

[brassnecked]

Pay what you can afford off the arrears direct to the council using the online system to show good faith, tell them this is what you have done, and pay in an amount regularly you can afford, reminding the council that legally you don't have to deal with Swift, and as they have applied spurious fees not permitted under the Regulations, you have NO Confidence in Swift dealing with you fairly, so you will continue to pay the council direct. and continue escalation to the LGO

 

You need to pay even a fiver or tenner a week to prove you are not simply a won't pay. As you are on low income just a reminder to check out those benefit entitlements at http://www.turn2us.org.uk/

Edited May 21, 2012 by brassnecked

[outlawla]

...I would therefore remind you that it is your responsibility to ensure that your payments are made on the due dates and whilst this matter is ongoing you must continue to pay your council tax as required by Government Regulations. As a result unless you contact the Council within 7 days in order to make a satisfactory arrangement to clear the full balance, including all costs, then further recovery action will be taken...

 

These communications are just generic template letters selected from the council's armoury of intransigent correspondences which they taylor to the particular situation, only by inserting "customer" specific details like name, dates, amounts and deadlines etc. This enables council officers to expend the least possible amount of time dealing with the issues, hence the reference to the county court to challenge fees.

 

It's interesting that one of their "template" paragraphs, threatens to take further recovery action if an arrangement is not made to clear the full balance, including all costs, within 7 days.

 

What more charges can they add, haven't they already maxed out on the possible fees?

 

If you take brassnecked's advice and pay off arrears direct to the council, they won't be permitted to bring a case against you for a custodial sentence. They threaten that all costs must be included in an arrangement....I doubt the council would pursue you further once its own debts are recovered.

[reallyinthecrap]

but what happens if the council tell the bailiff to reinstate actions and they have a levy on my car?

 

car disappears....

[outlawla]

but what happens if the council tell the bailiff to reinstate actions and they have a levy on my car?

 

car disappears....

 

I suppose that's the only potential risk.

 

You could do with finding out how many cases (if any) there have been occurrences of levied vehicles actually being removed by bailiffs while enforcing council tax debt for your local authority. This would allow you to assess the potential risk involved in having the bailiff take off with your car. A Freedom of Information request might be worth making to your council to get a realistic view of the situation.

[seanamarts]

Get the email off now, you have to go through the stage 3 process before contacting the ombudsman, or at least show you have tried, whether the council except this or not they would have been shown a good solid argument and one which the LGO will look into.

 

I have done all I can now to get this stage completed.

[reallyinthecrap]

an update from the council...

 

Dear Mr XXXXXX

Re: Complaint – Council Tax Enforcement

I refer to your e-mail dated the 23rd May 2012 regarding the above matter.

I can assure you that the Council fully understands the regulated fees and charges set out in Government Regulations.

I note that you accept the first two visit fees and the levy fee and I have set out below details relating to the disputed fees which I have discussed with Swift Credit Services Ltd.

Heading ‘H’ Fee

This fee is payable where no sale takes place by reason of payment or tender.

As a result this fee is payable once the full balance due under the seizure of goods notice has been made. At present this fee is not payable as the balance remains outstanding. However, you are notified of this amount in the notice of seizure as if payment is made in full then this fee must also be paid in order to settle the full balance including all costs.

You also mention advertisement and resale fees under Heading ‘H’. This is incorrect as these fees are specified under Heading ‘G’ of the legislation and at present are not applicable in your case.

Attendance with a vehicle with a view to the removal of goods

I note that you state that this fee cannot be charged at the same time of the levy, however the legislation states the following:-

 

‘For one attendance with a vehicle with a view to the removal of goods (where following the levy, goods ARE not removed).’

The legislation is worded in the present tense which demonstrates that the fees are charged at the same time without any gap. If the legislation intended to provide for two distinct separate stages then it would have been worded in the past tense as follows: -

‘For one attendance with a vehicle with a view to the removal of goods (where following the levy, goods WERE not removed).’

The case you have quoted relates to actions taken under the Enforcement of Road Traffic Debt Regulations and not council tax. In addition this is a case that was made before the County Court and is therefore not binding on other parties. Case Law is only binding if it takes place in higher courts such as the High Court.

Distress for Rent Rules

I note that you have also provided a hyperlink to legislation that relates to Distress for Rent. The enforcement action against you relates to council tax and therefore this has no bearing whatsoever on the recovery of your outstanding debt.

Fees for Attendance with a Vehicle

You state that the bailiff who attended had a small van. The regulations clearly state that the fee is payable for one attendance with a vehicle with a view to the removal of goods (where following the levy, goods are not removed). There is no stipulation within the regulations concerning the type or size of vehicles that must be used.

Bailiff Certification

I confirm that the bailiff, Mr XXXXX, who attended your property, is certificated and I have seen the certificate issued by the County Court in Merthyr on the 4th May 2011 which is valid for a period of 2 years. Should you wish to see the certificate then I would advise you to contact me in order to arrange a mutually convenient time for you to inspect this document.

Reasonable Costs and Fees incurred

The council is satisfied that the fee of £170.00 charged by Swift Credit Services Ltd is reasonable. You have been informed on many occasions that if you feel that the fees are not reasonable then you can apply to the County Court for ‘Assessment of the Fees’.

Offer of Repayment

The council tax arrears relate to the 2011/12 financial year and had you kept to your instalments then they should have been paid by the 1st January 2012. The total balance relating to the liability order and associated fees is now £614.61. I am prepared to enter into a deferred payment arrangement over a maximum period of six months. As a result providing the following payments are made then no further action will be taken by Swift Credit Services Ltd: -

1 payment due 8th June 2012 of £114.61

5 monthly payments due 8th July 2012 to 8th November 2012 of £100.00

A further fee of £22.50 will become payable following receipt of the full balance as explained under Heading ‘H’ Fee above.

You state in your letter that if the Council feels that your explanation as to why you should not pay the fees is not justified then you will have no option but to contact the Local Government Ombudsman.

To conclude, I am fully satisfied that Swift Credit Services Ltd have levied their fees in accordance with Government Regulations and it is clear that you do not accept this. I would therefore suggest that you should now consider taking this matter further with an external body as this dispute will not be considered under stage 3 of the Council’s Corporate Complaints Policy, which you have been previously advised.

I would again reiterate that your course of action should be to the County Court for detailed Assessment of the Fees. However, if you choose to contact the Ombudsman rather than the County Court then the appropriate details are as follows: -

Public Services Ombudsman for Wales

1 Ffordd yr Hen Gae

Pencoed

CF35 5LJ

Tel No: 01656 641150

I trust that this letter clarifies the position and look forward to receiving your first payment of £114.61 by the 8th June 2012.

Yours sincerely,

[outlawla]

This is a draft copy (extract of larger report) and might contain some useful information in connection with the Head H charge....

 

Extract Fraud Office – Header H.pdf

 

[EDIT]

 

I just had to laugh at this.....

 

I note that you state that this fee cannot be charged at the same time of the levy, however the legislation states the following:-

 

‘For one attendance with a vehicle with a view to the removal of goods (where following the levy, goods ARE not removed).’

 

The legislation is worded in the present tense which demonstrates that the fees are charged at the same time without any gap. If the legislation intended to provide for two distinct separate stages then it would have been worded in the past tense as follows: -

 

‘For one attendance with a vehicle with a view to the removal of goods (where following the levy, goods WERE not removed).’

 

 

[EDIT AGAIN]

 

Either bluffing or a complete incompetent..

 

You also mention advertisement and resale fees under Heading ‘H’. This is incorrect as these fees are specified under Heading ‘G’ of the legislation and at present are not applicable in your case.

 

 

Heading 'G' charges are specific to out-of-pocket expenses for auctioneer’s commission fees. Both 'G' and 'H' are costs in respect of advertising.

Edited June 7, 2012 by outlawla

[outlawla]

I just had a thought about the 1st visit, 2nd visit and the attendance with a vehicle (visit).

 

I don't know if this is going anywhere.....but....

 

Is there any legislation which states that Head 'C' of schedule 5 (For one attendance with a vehicle with a view to the removal of goods), has to occur after either one or both of the visits which incur the £24.50 and/or £18 fees?

[brassnecked]

@ reallyinthecrap and outlawla posts 161 -163 Council are talking carp, agree with outlawla regarding the Head c schedule 5 needs looking at.

[outlawla]

I just had a thought about the 1st visit, 2nd visit and the attendance with a vehicle (visit).

 

I don't know if this is going anywhere.....but....

 

Is there any legislation which states that Head 'C' of schedule 5 (For one attendance with a vehicle with a view to the removal of goods), has to occur after either one or both of the visits which incur the £24.50 and/or £18 fees?

 

 

Let's say for arguments sake that the "attendance with a vehicle" charge cannot be extorted from the alleged debtor without at least one prior visit.

 

You would then need to ask why the bailiff would not be permitted to do this.

 

I would argue that owing to the precise wording of schedule 5:

 

The bailiff is compensated for a maximum two attempts to levy goods (statutory visit fees), after which if he still has not managed to levy, must continue enforcement, without further charge until goods have been seized (levy fee). Only then can he progress enforcement to the next stage, where under certain circumstances will be permitted to impose a charge for attending with a vehicle with a view to the removal of goods, i.e. where goods are not removed.

 

I would also argue that the reason for goods not being removed on the "attendance with a vehicle" visit, would be because "following the levy" (made on a previous visit) the debtor either found funds to settle the liability order or had made a payment arrangement. The charge therefore would be to compensate the bailiff for out of pocket expenses for the unnecessary hire of either a removal van, or breakdown recovery truck, if he'd levied a vehicle.

 

Essentially (in my opinion) a levy must be in place before the bailiff can charge for attending with a vehicle with a view to the removal of goods.

 

The two visits under 'Head A' are not meant to be exhaustive of the number of times the bailiff can call on the debtor, they are only the number of times he will be compensated for failing to seize goods.

 

 

A For making a visit to premises with a view to levying distress (where no levy is made)—

 

(i) where the visit is the first or only such visit:

£24.50

(ii) where the visit is the second such visit:

£18

C For one attendance with a vehicle with a view to the removal of goods (where, following the levy, goods are not removed):

Reasonable costs and fees incurred.

Edited June 8, 2012 by outlawla

[brassnecked]

Exactly Outlawla, if there is no prior levy, they are not attending to remove, as the debtor may decide to pay up at the door, and if the ATR and other fees like head h are added, and debtor pays, they are entitled to reclaim the possibly fraudulent overcharge, fraudulent if the bailiff in full knowledge that as it was settled at the door, the ATR, and other fees beyond the first visit fee were unlawful imho

[outlawla]

Exactly Outlawla, if there is no prior levy, they are not attending to remove, as the debtor may decide to pay up at the door, and if the ATR and other fees like head h are added, and debtor pays, they are entitled to reclaim the possibly fraudulent overcharge, fraudulent if the bailiff in full knowledge that as it was settled at the door, the ATR, and other fees beyond the first visit fee were unlawful imho

 

Another point worth mentioning is that nearly every complaint I've seen put forward on CAG include charges for first and second visits which are effectively indicators of the enforcement agent's incompetence as a bailiff. This is because they fail to achieve the objective on both visits, which is to levy distress.

 

Systematically adding both these fees is either an indicator of the bailiff's ineffectiveness to do his job or evidence that these statutory fees detailed in schedule 5 are exploited to make a gain for the bailiff firm, along with the 'head H' and attending to remove charges.

Edited June 8, 2012 by outlawla

[reallyinthecrap]

Hello,

 

You may well recognise me from a previous thread regarding bailiff charges relating to a Council Taxi debt.

 

My main complaint was relating to 2 charges on 2 seperate Walking Possession Agreements. The first for £150 and the second for £170 described as "Attending with a vehicle with a view to removing"

 

On both occasions these charges were added at the 3rd visit at the same time the "Levy Fee to scale schedule" as added.

 

I have taken the adivce found on this excellent website and challenged these fees with the Local Council and have got absolutely nowhere. They have quoted the schedule 5 rules and said that, yes, the bailiff indeed can charge these fees at the same time.

 

I am also seeing numersous other Caggers getting the advice that the fee is incorrect.

 

BUT, why am I unable to find definitive proof of this?

 

Even when I read the regulations I cannot see anywhere that is states that this cannot be done.

 

Can anyone please please find where it states categorically that this fees should not be added at the same time as the Levy fee is made?

 

Thanks

[outlawla]

Glad to see you haven't given up on this RITC.

 

I know this isn't exactly the response you're looking for, but it shows that to some degree the MoJ has awareness of this. Hopefully it will serve to keep the interest going until this conundrum is solved.

 

Have a look at the bottom of page 193 of this MoJ document under the heading "Nature of alleged abuses"

Nature of alleged abuses

 

• “Sending letters claiming that the Enforcement agent has made visits when no visit has been made and adding charges for such visits”. (Enforcement Agency)
  
  

• “Charging a fee for attending to remove goods in respect of Council Tax and NRD debts
  where no levy has been made
  ”. (Enforcement Agency)
  
  

• “The fees where the values are not specified (where it states “Reasonable”), are prone to abuse by unscrupulous Enforcement agents, especially where the creditor has no interest or does not check/ monitor the level of fees being charged by their contractor.” (Enforcement Agency)
  
  

Other reference Page 59 (10.2.2. Nature of current abuses)

 

If the link to the MoJ document doesn't work let me know and I'll upload and post it here.

 

 

 

[EDIT]

 

Hopefully a bit closer with this LGO report.

 

Report on an investigation into complaint nos 95A01890 & 95A04826 against London Borough of Ealing

 

Page 10 of the report

.......

 

32

. The Secretary of the Certificated Bailiffs Association says that where there has been no levy there is, in his view, no doubt that a van charge cannot be made.

 

33

. The Head of Revenue at the Chartered Institute of Public Finance and Accountancy also says that in his view the law is quite clear, and that van charges cannot be made unless distress has first been levied.

 

34

. The Department of the Environment says it does not believe that there can be any interpretation of the regulations other than that no charge can be made for a van unless distress has been levied. Any charges for visits when distress has not been levied are limited to £27.50 (

£42.50 in today's money

) for two visits.

 

35

The Council initially took the view that the bailiffs could charge for attendance with a vehicle even if distress had not been levied, but now agrees that no charge can be made for a van unless distress has been levied.

.......

 

Page 15

 

60

. The bailiffs point out that, although they acknowledge that the regulations do not permit the charging of van fees where distress has not been levied, this creates an anomaly. They say that if a debtor prevents the bailiffs from entering the premises, the bailiffs are prevented from charging for expenses actually incurred. Nonetheless, they accept that van charges cannot be made if distress is not levied, and say that the error in Mr Martin’s case was an isolated one.

.......

 

Page 16

 

62

. The evidence from this investigation is that there were irregularities in the charges the bailiffs imposed on Mr Martin’s accounts.

 

• There is a conflict of evidence as to whether the bailiffs visited Mr Martin on 3 November 1994. I conclude on balance that they did not visit, but that they sought to charge a £15 (

£24.50

) first visit fee, which they termed an ‘administration fee’ and recorded on the computer as ‘other costs’ (see paragraph 15).

 

• The bailiffs visited Mr Martin on 20 January 1995 and at first sought to charge a total of £122.50, which bore no relation at all to the sums allowed under the regulations. They said subsequently that they had made an arithmetical error.

 

• The bailiffs made two visits to Mr Martin on his 1993/94 account, and were entitled to charge a total of £27.50 (

£42.50

). On the second visit the bailiffs also charged £80 for the costs of attending with a van. But no distress had been levied, and

they were not entitled to make a van charge

.

..........

 

Page 17

 

67

. There were also irregularities in the charges the bailiffs imposed on Mr Taylor’s account. The bailiffs made two visits and were entitled to charge a total of £27.50 (

£42.50

). They also charged Mr Taylor £100 for the costs of attending with a van. But no distress had been levied, and

they were not entitled to make a van charge

.

.......

 

[EDIT AGAIN]

 

tomtubby's July 2011 News letter: The charging of an "enforcement fee"

 

 

Citizens Advice page 29 Item 4.17.

Edited June 9, 2012 by outlawla

[reallyinthecrap]

the above is excellent. and fully backs up what i believe to be true.

 

i think the problem is that the above clearly states that this charge cannot be applied unless a levy/distress is in place.

 

but it does not clearly state that a levy and and the attendance fee cannot be made on the same visit.

 

the council/bailiffs in my particular case are intrepreting the legislation as enabling them to levy on something and charge the attending with a view fee on the same visit.

[reallyinthecrap]

say for a second i was a bailiff... god forbid.

 

that means i can cruise around in my van and as soon as i can get a levy on something. bang. i can hit them with this charge.

 

if i drag it out to the 3rd visit its more money as well.

[outlawla]

......but it does not clearly state that a levy and and the attendance fee cannot be made on the same visit......

 

I thought the same thing, but wonder if there's any need for it to be stated, as it would be understood that for a bailiff to remove goods, he'd need to know what they were to decide which kind of vehicle would be approriate for their safe removal. If the bailiff had not seized goods he wouldn't have a clue whether to turn up in a tow-truck, removal van or need to hire a professional removal outfit specialising in crystal chandelier transportation.

[reallyinthecrap]

ok. with my bailiff head on again...

 

i dont care. i was in a van. i did my best to turn up in appropriate transport.

 

i didnt know the only thing i could levy against couldnt be taken away anyway.

 

so. i did my best. £170 please.

[outlawla]

A freedom of information request has been made to the Ministry of Justice but unfortunately it side stepped the issue as is typical for these types of requests.

[reallyinthecrap]

just phoned the Public Services Ombudsman for Wales to start the complaints process with them.

 

awaiting complaint form in the post....

[seanamarts]

The ombudsman is your best way forward on this now, Keep us informed as to how you get on.

[tomtubby]

Would you mind posting back to say which local authority or bailiff company this relates to.

The answers above are excellent.

There are two important points to take into consideration:

An individual will NOT see a copy of the actual Liability Order. Even though we have a commercial business advising the public with bailiff enquiries, I have personally only ever seen ONE Liability Order.

The official wording on the Liability Order is as follows:

On the complaint of [name of billing authority] that the sums specified in the Table below are under Part V of the Council Tax (Administration and Enforcement) Regulations 1992 due from the defendants so specified to the complainant and are outstanding, it is adjudged that the defendants are liable to pay the aggregate amounts specified in respect of them in the Table, and it is ordered that those amounts may be enforced in the manner mentioned in Part VI of those Regulations accordingly.

Part VI (6) of The Council Tax (Administration and Enforcement) Regulations 1992 deals with enforcement and it is important to take section 46 (Distress) into consideration. It states as follows;

"Where a Liability Order has been made, the authority which applied for the order may levy the appropriate amount by distress and sale of the goods of the debtor against whom the order was made".

The purpose of the visit is to LEVY UPON GOODS.....a “levy" is therefore a LEGAL REQUIREMENT before goods can be taken away.

With council tax, a levy is made and the goods may then be made subject to a Walking Possession. Goods will then remain within the property whilst payment is made at whatever rate of repayment the debtor and bailiff agree.

If payment is NOT made in accordance with the payment arrangement, the bailiff is then LEGALLY entitled to return to the debtor’s property with the INTENTION OF REMOVING GOODS. At this stage, he can indeed charge a fee for "attending to remove".

At this visit, the bailiff may give the debtor a 2nd chance to pay by setting up another payment arrangement.

If default happens again, the bailiff may ONCE AGAIN visit and can charge a 2nd "attending to remove" fee.

BUT...

It is important to know that he may only charge a MAXIMUM of TWO "attending to remove" fees and that if a 2nd ATR fee is applied, this may ONLY be charged IF GOODS ARE ACTUALLY REMOVED

Removing goods is very rare indeed and happens in less than 0.5% of cases. Therefore it is EXTREMELY rare for an account to have 2 “attending to remove” fees being charged.

 

 

 

[hallowitch]

Would you mind posting back to say which local authority or bailiff company this relates to

 

 

 

 

Swift Credit Services working on behalf of The Vale of Glamorgan County Council.

 

 

previous thread regarding this

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?345691-visit-from-the-baliff-tonight.-waiting-outside

[tomtubby]

Another point to consider is this:

 

A bailiff may well "levy distress" upon a motor vehicle parked outside of a property if he has "good reason" to believe that it is owned by the debtor.

 

It is obvious that he cannot actally REMOVE the vehicle at that particualr time as the local authority ( who are wholly responsible for the levy) would need to first make a DVLA enquiry to obtain ownership details. This would take AT LEAST 24 hours.

 

Yet ANOTHER reason to support the fact that a bailiff cannot charge an "attending to remove" fee to an account at the same time as a levy has been made upon goods.