Taking Control of Goods: "Transitional' stage (where enforcement commenced BEFORE 6th April)....mistakes are happening!!

[tomtubby]

On 6th April the new Taking Control of Goods Regulations 2013 took effect and full details can be read in the various 'STICKY's at the top of this page. One very important "Sticky' relates to the 'transitional' position...which is where an enforcement company had commenced work to enforce the debt before 6th April (under the previous applicable fee scale) but where the debt remained unpaid when the new regulations took effect on 6th April.....and a new fee scale introduced.

 

Although the new regulations have only been in force for 10 days it would appear that some enforcement companies (names being withheld for the present time) are making significant 'mistakes' in their calculation of fees when re-commencing enforcement. I will provide details shortly. In the meantime below is a copy of the 'STICKY' that I had written to outline the 'transitional' stage.

[tomtubby]

Council tax, non domestic rates, road traffic debts, child support agency arrears and rent arrears:

 

If before 6th April a bailiff has attended premises for the purpose of attempting to 'levy’ distress but he was unable to do so, then the action already taken by him would constitute the "compliance stage" (which from 6th April will be £75).

 

However: for the above debts the enforcement company will not be able to charge this fee to you (of £75) and instead (and this is very important) he can only charge the appropriate fee as outlined in the relevant statutory regulation in force at the time of the attendance (see footnote).

 

For all future actions the Enforcement Agent will be permitted to charge an 'enforcement stage fee' of £235.

 

Most importantly, if the bailiff had 'levied upon goods' before 6th April then he may continue to enforce the relevant debt using the applicable fee scale as outlined in the footnote.

 

 

Magistrate Court Fines

 

With regards to a Warrant of Distress issued under section 76(1) of the Magistrates Courts Act 1980 the ‘transitional’ position does not vary too much. At present, the fees chargeable to the debtor to enforce a Distress Warrant for a Magistrate Court fine consist of £85 for the ‘administration’ stage and £215 for the ‘enforcement visit’ stage.

 

If the enforcement company had issued a letter to the debtor before 6th April to request payment the fee chargeable will be £85. If payment has not been made by 6th April the Enforcment Agent will be permitted to charge an ‘enforcement stage’ fee of £235 (instead of the present fee of £215).

 

 

High Court Enforcement debts:

 

If before 6th April a High Court Enforcement Officer had made at least one visit to seize goods pursuant to the writ; and had been unable to seize goods or to enter into a walking possession agreement but enter into an repayment agreement to pay the amount for which the writ was issued and has been making payments in accordance with the agreement throughout the duration of the writ then the action already taken by the High Court Enforcement Officer would constitute the "compliance stage" (which from 6th April will be £75). However, instead of charging £75 the HCEO may instead only recover the following fees:

 

(a) Mileage fee (fee 2 in Part A of Schedule 3 to the High Court Enforcement Officers Regulations 2004) in relation to the journey;

 

(b) Percentage fee (fee 1 in Part A of Schedule 3 to the High Court Enforcement Officers Regulations 2004) in relation to any amounts paid under the agreement;

 

and

© Miscellaneous Fee (fee 12 in Part C of Schedule 3 to the High Court Enforcement Officers Regulations 2004 ) but ony if the agreement provided for the payment of such a fee.

 

 

 

 

 

 

Council Tax: the Council Tax (Administration and Enforcement) Regulations 1992 (as amended).

 

Non Domestic Rates: Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 (as amended)

 

Road Traffic Debts: the Enforcement of Road Traffic Debts Order 1993 (as amended)

 

Child Support Agency arrears: The Child Support (Collection and Enforcement) Regulations 1992

 

Rent arrears: Distress for Rent Rules 1988 (as amended)

[tomtubby]

So...what 'mistakes' are happening?

 

Firstly, as I have highlighted above, it is vitally important to know the precise amount of any fees that had been applied to the debtors account before 6th April. This is because; if the enforcement agent (or bailiff as he was then known) had already 'levied' upon goods before 6th April and the debt remains unpaid then any further visits to enforce the debt after 6th April will attract the fees that were in force at the time of the levy.

 

The 'key' is whether or not a 'levy' had been made before 6th April.

 

With council tax (as an example) if a levy had been made (on the debtors goods) before 6th April and the debt remains unpaid today then if the enforcement agent makes a personal visit he must only charge 'an attending to remove' fee as outlined in the Council Tax (Administration and Enforcement) Regulations 1992 (as amended). On average this fee would range from approx £100-£150.

 

If however a 'levy' had not been made on goods before 6th April and the debt remains unpaid today then the personal visit may be made which would attract an 'enforcement stage fee' of £235 !!!

 

From enquiries received in the past 10 days I have discovered that in 9 cases the fees charges to debtors is WRONG:

 

In 5 cases when enquiries were made it was established that a 'levy' had already been made on goods (in each case a vehicle) before 6th April and yet....in each case the enforcement agent has attempted to charge £235 (when in reality, the fee should be an 'attending to remove' fee) In each case the debtors had not even known that a 'levy' had ever been made upon the vehicles !!!

 

One very serious case was early this morning and related to council tax. The debt was around £1,400 and unfortunately, in December the debtor allowed the bailiff into her home and a levy had been made upon a sofa and TV (which was hopelessly insufficient for a debt of £1,400). The bailiff agreed a payment arrangement of £150 per month and a Walking Possession Agreement was signed.

 

She paid the December, January and February payments but was 3 days late making the March payment. Yesterday she received notification of a visit and the fee charged was £235 (when it should have been the fee applicable under the old fee scale). I informed the lady that she must contact the company to question the fee (of £235) and after making enquiries the enforcement company advised the debtor that they could not find any trace of the 'levy notice' or 'walking possession agreement' and that without these documents they are able to charge £235 !!! WRONG.....

 

NOTE:

 

It is vital that debtors make enquiries to find out exactly how much they were charged before 6th April.

[tomtubby]

The relevant statutory regulations applicable to the 'transition' stage are as follows:

 

The Tribunals, Courts and Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014

 

http://www.legislation.gov.uk/uksi/2014/600/contents/made

 

PS: I had not previously posted a link to the regulations as there had been a slight error in the regs and a Correction Slip is being issued. I have mentioned elsewhere that I had also identified two further error which I brought to the attention of MoJ and it would appears that an additional 'Correction Slip' is in the process of being released.

[brassnecked]

Thanks TT the key questions must be then Is there a levy made before 6th April, however I forsee a great number of levies on vehicles, that would have been claimed, now being denied to enable them wrongly to charge the new fees.

Edited April 17, 2014 by brassnecked
typo

[tomtubby]

Brassnecked.

 

Very appropriate answer indeed !!

 

Yesterday a debtor contact me regarding the fee now being charged of £235 and in her case, the debtor knew that they had 'levied' upon her car a few weeks ago. However, the car was a very high mileage 02 plate Fiat. I informed the debtor that she should ring the bailiff company to question the fee (of £235) given that a 'levy' had been made before 6th April. She called me a few moments ago to say that she had called the bailiff company and they told her that they had CANCELLED the levy because of the low value of the car and that as a result of this......they can legally charge £235.

 

NO THEY CANNOT !!!!

[brassnecked]

If they cancel a levy they made berfore April 6th for whatever reason, I feel that the old rules should still apply as the bailiff as he/she was then would have claimed it was lawful and still insisted on its validity even if vehicle on finance or third party. so merely cancelling the levy will not reset the enforcement to allow the £235 Enforcement fee under the new rules, surely the old rules would still be applicable.

[tomtubby]

I have not posted on this thread for 2 months but it continues to be a worry that some enforcement companies are still making errors with the charges that should be applied to accounts where some form of enforcement started BEFORE 6th April. Although we have received many enquirers on this matter it is almost always the case that when the error is brought to the attention of the enforcement company an adjustment is made.

 

The new regulations that came into force on 6th April are significantly different from the previous regs. It was regrettable that the 'powers that be' within the Government left all Stakeholder groups (including the 'advice and enforcement sector') with very little advance guidance of the new regulations (whether or not VAT was chargeable to the debtor was one excellent example!!).

 

 

A little known fact was that for over 2 years CIVEA had been raising the matter of 'transitional arrangements' with the Ministry of Justice and during the 2nd week of February (less than two months before the regulations took effect) the Government concluded that it would not be possible to implement 'transitional regulations' in time. The effect of this being that enforcement action could have ground to a halt on 6th April.

 

Eventually, 3 weeks later ( and just two week before the Taking Control of Goods Act 2013 was implemented) the government relented and released the relevant 'Transitional' Regulations.

 

The extreme lateness inevitably led to enforcement companies and local authorities struggling to train staff and most importantly, to update computer systems with the correct fees. Hopefully within the next few weeks (or slightly longer) all companies will have adjusted their previous accounts with the correct fee scale.

 

This is not to say that any company making such errors should be excused but I do think some allowance should be given for a short while ONLY.

[ploddertom]

 

This is not to say that any company making such errors should be excused but I do think some allowance should be given for a short while ONLY.

 

 

In my view the allowance for errors should now be zero. As there has been a substantial change to Regulations it is up to each Company to monitor what is going on and it seems to me that they are only addressing things whaen a complaint is made. Should be that each case regardless should be monitored and appropriate action taken when an error is discovered - otherwise how are the EA's going to be brought up to date. It appears from some we have seen there has been no change in how matters are progressing - look at the vulnerability issue raised just a couple of days ago - I've had another one this morning where the excuse for the 7 clear days has been to give 8 calendar days as that then excudes a Sunday, this from a High Court Enforcement Co. It does appear to me there are those that have learned very quickly how it has to be and those that are carrying on regardless. I won't name names for now but have now got a "watching" list.

[Talk sense]

In my view the allowance for errors should now be zero. As there has been a substantial change to Regulations it is up to each Company to monitor what is going on and it seems to me that they are only addressing things whaen a complaint is made. Should be that each case regardless should be monitored and appropriate action taken when an error is discovered - otherwise how are the EA's going to be brought up to date. It appears from some we have seen there has been no change in how matters are progressing - look at the vulnerability issue raised just a couple of days ago - I've had another one this morning where the excuse for the 7 clear days has been to give 8 calendar days as that then excudes a Sunday, this from a High Court Enforcement Co. It does appear to me there are those that have learned very quickly how it has to be and those that are carrying on regardless. I won't name names for now but have now got a "watching" list.

 

It's like I said in previous posts.

Bailiff companies and turnover.

 

If they were that bothered about the EA they'd make sure his or her procedure was a fair one.

Truth is they're not.

It's the bailiff at risk not the companies this has always been the case and always will be.

 

Lose a one, replace with another one.

And turn a blind eye.

This through new regs, change of job title will always remain the same. As it's a industry mostly driven by greed.

 

Bailiffs EA arnt anything but a tool used to put fees on cases.

Now more than ever with the new regs.

[tomtubby]

Talk Sense.

 

This thread is a very important one that was started by me and has been read by many people. I have not been around for a few days but have noticed that a lot of threads have been closed as 'discussions' that you had been involved in tended to gets 'worrying'. I would hate the same to happen to this thread.

 

I would like to make a couple of points. This forum is extremely well known for providing accurate information for debtors and is not concerned with 'debt avoidance'. It is for this reason that local authorities and other government agencies frequently visit the site. Enforcement companies are daily visitors as well. Rather pleasing is that the forum also receives frequent posts from some bailiffs and High Court Enforcement Officers. To have another bailiff such as you providing assistance would be excellent.

 

However,

 

I really do hope that your future posts provide advice to the debtor and do not veer towards complaining at the way in which the new regulations have affected you.

 

You have a slight 'uphill' battle as some posters believe that you may not be genuine. Regular posters on here are having to very quickly adapt to new regulations. Enforcement Agents have to do the same. It is not easy.

 

Welcome to the forum.

 

PS: I would be interested in your comments regarding the Police & Bailiff Roadside Operations.

[Talk sense]

Talk Sense.

 

This thread is a very important one that was started by me and has been read by many people. I have not been around for a few days but have noticed that a lot of threads have been closed as 'discussions' that you had been involved in tended to gets 'worrying'. I would hate the same to happen to this thread.

 

I would like to make a couple of points. This forum is extremely well known for providing accurate information for debtors and is not concerned with 'debt avoidance'. It is for this reason that local authorities and other government agencies frequently visit the site. Enforcement companies are daily visitors as well. Rather pleasing is that the forum also receives frequent posts from some bailiffs and High Court Enforcement Officers. To have another bailiff such as you providing assistance would be excellent.

 

However,

 

I really do hope that your future posts provide advice to the debtor and do not veer towards complaining at the way in which the new regulations have affected you.

 

You have a slight 'uphill' battle as some posters believe that you may not be genuine. Regular posters on here are having to very quickly adapt to new regulations. Enforcement Agents have to do the same. It is not easy.

 

Welcome to the forum.

 

PS: I would be interested in your comments regarding the Police & Bailiff Roadside Operations.

 

I will keep things on point.

[Talk sense]

I will keep things on point.

 

PS: I would be interested in your comments regarding the Police & Bailiff Roadside Operations.

Pls send me those notes and I will have a look and hopefully help give a good opinion.

[tomtubby]

Excellent...and thank you for taking the time to read my post and to respond.

[Talk sense]

Excellent...and thank you for taking the time to read my post and to respond.

 

Not at all.

 

I think generally speaking all want what's best.

And agreed passion can sometimes overrule the mind.