Ministry of Justice explain why the Compliance Fee of £75 is deducted first.

[Neckbeard]

Erm, that is what I said. It is fanciful (and no doubt the bailiff's view) that proceeds are any monies paid to anyone after enforcement begins, but it is not. It is, as we have now both shown is money taken in exercise of the power.

 

So the bailiff has to take the money. Money paid direct to the council is voluntary.

[Peterbard]

Erm, that is what I said. It is fanciful (and no doubt the bailiff's view) that proceeds are any monies paid to anyone after enforcement begins, but it is not. It is, as we have now both shown is money taken in exercise of the power.

 

So the bailiff has to take the money. Money paid direct to the council is voluntary.

 

No we go into the realm of erm and this is the baiiffs view. well it was nice to have a debate which considered the actual regulations and how they work, however brief, we are no back with the FMOTL so I will depart.

[Neckbeard]

No we go into the realm of erm and this is the baiiffs view. well it was nice to have a debate which considered the actual regulations and how they work, however brief, we are no back with the FMOTL so I will depart.

 

The only debate you were interested in was fighting the bailiff's corner. The legislation is clear - fees are taken from proceeds only. There is no other provision. Proceeds can only be considered proceeds if they have been physically taken by the bailiff or the bailiff company.

[unclebulgaria67]

The only debate you were interested in was fighting the bailiff's corner. The legislation is clear - fees are taken from proceeds only. There is no other provision. Proceeds can only be considered proceeds if they have been physically taken by the bailiff or the bailiff company.

 

Neckbeard

 

We have read your logic elsewhere online and there is a difference of opinion. You can debate this forever and both sides will still have the same point of view. There is no point.

 

I believe that CAG has stated the correct position. Who knows there may be a court case at some point in the future which backs up your opinion and you can come back to say, I told you so. Until then..............

[outlawla]

....Confusion arises for debtors because if they make payment of the court fine or liability order after the debt has been passed to the enforcement agent the regulations state that the Compliance Fee must be deducted from any payment made (whether made to the court or the council or whether in person or on line) and the balance apportioned on a pro rata basis.....

"

whether made to the court or the council or whether in person or on line

Is this actually stated in the regulations or has it been taken from a council's response to some interrogation?

 

EDIT:

 

I had this in mind (below link), though not necessarily the same circumstances. Birmingham's response was specifically referring to debt outsourced to an enforcement agent whilst the above does not specify.

 

https://www.whatdotheyknow.com/request/taking_control_of_goods_fees_reg_24#incoming-541803

[Bailiff Advice]

I will post replies later on today but in the meantime here is something to consider:

 

To enforce any debt the enforcement agent must use the 'procedure' outlined in Schedule 12 and crucially, the actual 'power' (to use the 'procedure') to recover a particular sum is called an 'enforcement power' (Part 1: Introductory item 1.2)

 

The 'enforcement power' covers the entire procedure starting from when the debt is passed from the creditor and naturally includes the 'Compliance Stage' (which commences from when the debt is actually passed from the creditor to the enforcment agent).

 

If the debtor makes payment this if referred to as 'proceeds' and to clarify this point Part 50 of Schedule 12 confirms that 'proceeds' includes 'money taken in 'exerise of the power',).

 

Only the enforcement agent can use the 'enforcement power' under Schedule 12 and accordingly; only the enforcment agent may recover the Compliance fee. There is nothing in the regulations permitting a creditor to recover the Compliance fee of £75. Nothing at all. Only an enforcement agent can recover fees.

 

Regulation 13 of the Taking Control of Goods (Fees) 2914 is entitled' Application of Proceeding' and covers all situations where payment is made of an amount of less than the total amount due.

 

Regulation 13 specifically provides that the Compliance Fee of £75 must be deducted first.

 

Given that the regulation do not permit a creditor to recover fees then common sense would tell you that the local authority/magistrate court cannot retain the Compliance Fee of £75. It is not their fee and if they use the Compliance Fee to reduce the debt this is clearly unlawful.

[outlawla]

If a debtor makes a direct transfer of funds into the authority's bank account specifying his council tax reference, then the council would not be retaining an enforcement fee, the payment will have been made in respect of paying off the Council Tax liability.

[Bailiff Advice]

Only the enforcement agent can possess the 'enforcement power' under Schedule 12 and accordingly; only the enforcment agent may recover the Compliance fee. There is nothing in the regulations permitting a creditor to recover the Compliance fee of £75. Nothing at all. Only an enforcement agent can recover fees.

 

Given that the Compliance Fee is to be deducted first then the fact remains that if a debtor pays the council or court direct then that creditor is not legally permitted to retain the Compliance Fee and accordingly cannot use it to reduce their debt and instead, must pass the fee back to it's legal owner....the enforcement agent.

[Peterbard]

I will post replies later on today but in the meantime here is something to consider:

 

To enforce any debt the enforcement agent must use the 'procedure' outlined in Schedule 12 and crucially, the actual 'power' (to use the 'procedure') to recover a particular sum is called an 'enforcement power' (Part 1: Introductory item 1.2)

 

The 'enforcement power' covers the entire procedure starting from when the debt is passed from the creditor and naturally includes the 'Compliance Stage' (which commences from when the debt is actually passed from the creditor to the enforcment agent).

 

If the debtor makes payment this if referred to as 'proceeds' and to clarify this point Part 50 of Schedule 12 confirms that 'proceeds' includes 'money taken in 'exerise of the power',).

 

Only the enforcement agent can use the 'enforcement power' under Schedule 12 and accordingly; only the enforcment agent may recover the Compliance fee. There is nothing in the regulations permitting a creditor to recover the Compliance fee of £75. Nothing at all. Only an enforcement agent can recover fees.

 

Regulation 13 of the Taking Control of Goods (Fees) 2914 is entitled' Application of Proceeding' and covers all situations where payment is made of an amount of less than the total amount due.

 

Regulation 13 specifically provides that the Compliance Fee of £75 must be deducted first.

 

Given that the regulation do not permit a creditor to recover fees then common sense would tell you that the local authority/magistrate court cannot retain the Compliance Fee of £75. It is not their fee and if they use the Compliance Fee to reduce the debt this is clearly unlawful.

 

Yes indeed my thoughts too.

[Bailiff Advice]

A further point that should be noted is this:

 

If the debtor makes payment to the creditor after the debt has been passed to the enforcement agent then (in the vast majority of cases), the debtor would have known from the Notice of Enforcement that payment was to be made to the enforcement agent. Furthermore, in the case of council tax, the debtor would have received a letter from the local authority advising that a Liability Order had been obtained and that payment was required to avoid the debt being passed to bailiffs.

 

Accordingly, if the debtor then proceeds to make payment to the council of less than the amount stated on the Notice of Enforcement it would generally be considered that they were seeking to avoid paying the Compliance Fee.

 

PS: Even though the new regulations have removed the right of the local authority to send a '14 day' letter, it is the case that almost all local authorities are still sending the '14 day' letter.

[Peterbard]

Proceeds can only be considered proceeds if they have been physically taken by the bailiff or the bailiff company.

Leaving aside that there is absolutely nothing in the legislation or regulation to support this view.

So if a letter is sent and the debtor pays the council because of it, is it not proceeds of the enforcement? logically at least.

[Bailiff Advice]

If a debtor makes a direct transfer of funds into the authority's bank account specifying his council tax reference, then the council would not be retaining an enforcement fee, the payment will have been made in respect of paying off the Council Tax liability.

 

See my post 35...

[Bailiff Advice]

Proceeds can only be considered proceeds if they have been physically taken by the bailiff or the bailiff company.

 

Where did this idea come from?

[Peterbard]

If a debtor makes a direct transfer of funds into the authority's bank account specifying his council tax reference, then the council would not be retaining an enforcement fee, the payment will have been made in respect of paying off the Council Tax liability.

##Once the debt had been passed to the baiiff the amount outstanding would include the fee for what ever stage the enforcement was at. So the payment would be insufficient and the bailiff would continue to pursue for the balance.

[outlawla]

....So if a letter is sent and the debtor pays the council because of it, is it not proceeds of the enforcement? logically at least.

 

Not if the only reason a debtor failed to pay was because of a cash flow problem, but subsequently cash became available and was paid the council. The EA would have had no influence on the debtor's payment. Payment was always going to have been paid and the only factor influencing payment was the fact that the debtor's cash flow problem ceased.

[Peterbard]

Not if the only reason a debtor failed to pay was because of a cash flow problem, but subsequently cash became available and was paid the council. The EA would have had no influence on the debtor's payment. Payment was always going to have been paid and the only factor influencing payment was the fact that the debtor's cash flow problem ceased.

 

Just like if the baiiff knocked on the door just as the debtor was on his way to the post box to send the payment, he gives it the bailiff, instead. The payment was not a result of the bailiffs call was it. :~)

 

The point is the enforcement process had started, so the fee is due, the regulations are quite clear on this, the enforcement does not have not be completed it does not even need to be successful it just needs for the particular stage to be commenced.

[Neckbeard]

Where did this idea come from?

 

TCE sch12 50:

 

(2)Proceeds are any of these—

 

(a)proceeds of sale or disposal of controlled goods;

 

(b)money taken in exercise of the power

 

As you have mentioned, only the bailiff can exercise this power, so only they can be in receipt of 'proceeds'. No-one else is entitled to collect proceeds taken in the exercise of power.

[Neckbeard]

Only the enforcement agent can possess the 'enforcement power' under Schedule 12 and accordingly; only the enforcment agent may recover the Compliance fee. There is nothing in the regulations permitting a creditor to recover the Compliance fee of £75. Nothing at all. Only an enforcement agent can recover fees.

 

Given that the Compliance Fee is to be deducted first then the fact remains that if a debtor pays the council or court direct then that creditor is not legally permitted to retain the Compliance Fee and accordingly cannot use it to reduce their debt and instead, must pass the fee back to it's legal owner....the enforcement agent.

 

In that case, as I believe outlawla has mentioned, any payment to the council cannot have been taken in the exercise of power. Only the bailiff can use this power. The council should refuse the payment if they are not legally due it.

[Peterbard]

TCE sch12 50:

 

(2)Proceeds are any of these—

 

(a)proceeds of sale or disposal of controlled goods;

 

(b)money taken in exercise of the power

 

As you have mentioned, only the bailiff can exercise this power, so only they can be in receipt of 'proceeds'. No-one else is entitled to collect proceeds taken in the exercise of power.

 

 

The definition of enforcement power is given in section 1(2) schedule 12 of the TCE 2007 as:

(2)In this Schedule a power to use the procedure to recover a particular sum is called an “enforcement power”.

Nothing there about receiving the funds in person ?

[Neckbeard]

The definition of enforcement power is given in section 1(2) schedule 12 of the TCE 2007 as:

(2)In this Schedule a power to use the procedure to recover a particular sum is called an “enforcement power”.

Nothing there about receiving the funds in person ?

 

The bailiff is the only one who can exercise the powers, therefore he is the only one who can receive the proceeds.

[Peterbard]

Just to clarify further. The enforcement power commences when the enforcement does ,this is when the debt is transferred to the bailiff, any monies paid to whom ever on this account would be as a result of this enforcement and the requisite fee would be due.

[Peterbard]

The bailiff is the only one who can exercise the powers, therefore he is the only one who can receive the proceeds.

 

I am sorry i do not see the logic in this statement, the DVLA exercise the power to demand payment for my car tax yet I pay it at the post office. You are making assumptions which are not stipulated in the act, the regulations are highly compacted statutory language, if the baiiff was the only person who could collect the proceeds it would say so.

[Neckbeard]

Just to clarify further. The enforcement power commences when the enforcement does ,this is when the debt is transferred to the bailiff, any monies paid to whom ever on this account would be as a result of this enforcement and the requisite fee would be due.

 

No-one is disputing that the fees are due, no-one, and to continually repeat it is pointless. When you get your windows cleaned, a fee is due; when you get your hair cut a fee is due; when you rent a DVD a fee is due. The bailiff has every right to charge his fee.

 

However, he has no right to expect money paid directly to the council to pay the original to be paid to him to cover his fees. He can only rake off his fees if he is successful in taking control of goods or money.

[Peterbard]

Also thinking about this, if you are right and only the bailiff can collect the proceeds, the debtor would not be able to pay the council at all, since the debt would be in the bailiffs hands and under an enforcement power.

[Neckbeard]

I am sorry i do not see the logic in this statement, the DVLA exercise the power to demand payment for my car tax yet I pay it at the post office. You are making assumptions which are not stipulated in the act, the regulations are highly compacted statutory language, if the baiiff was the only person who could collect the proceeds it would say so.

 

It does, and member 'Bailiff Advice' has kindly explained that, even if he didn't mean to. Only a certified bailiff has the power to exercise these powers.

 

The DVLA argument is irrelevant - you can pay them direct if you wish to. People use the PO for convenience, and they don't charge £75 for the privilege.