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

[Peterbard]

 

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.

I understand that this is what you say, but it is not what the regulations say, they say the fee is due on the commencement of the stage nothing to do with performance.

[Neckbeard]

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.

 

No, the debt remains to the council, but they have no powers to exercise enforcement. The council has asked the bailiff to make recovery as they do have the power of enforcement. However, if the bailiff fail to enforce, they have clearly collected no proceeds.

[Neckbeard]

I understand that this is what you say, but it is not what the regulations say, they say the fee is due on the commencement of the stage nothing to do with performance.

 

And the legislation most certainly doesn't say that the council must pass on the bailiff fees.

[Peterbard]

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.

 

Yes and he would be right exercising the powers is not personally collecting money(it is spelled differently)

[Neckbeard]

Yes and he would be right exercising the powers is not personally collecting money(it is spelled differently)

 

[Bailiff Advice]

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.

 

It would be difficult for creditors such as local authorities or magistrate courts to refuse payments given that in almost all cases the 'proceeds' are being paid into their account without their knowledge. In fact, in the case of court fines, there are now numerous web sites that will specifically advice debtors to pay the amout of the court fine into the ATM machine in the court bailiff and to make sure that they do not speak to the court staff.

[Neckbeard]

It would be difficult for creditors such as local authorities or magistrate courts to refuse payments given that in almost all cases the 'proceeds' are being paid into their account without their knowledge. In fact, in the case of court fines, there are now numerous web sites that will specifically advice debtors to pay the amout of the court fine into the ATM machine in the court bailiff and to make sure that they do not speak to the court staff.

 

Then the creditor needs to ensure this can't happen. The reason they can't is because they know they can't - if they refuse payment, liability is discharged.

[Peterbard]

And the legislation most certainly doesn't say that the council must pass on the bailiff fees.

 

I find it difficult to understand why the council/EA's internal accounting procedures would be of such interest to you, the real point is tht the fee is due and payable by the debtor.

[Peterbard]

So this argument is that the bailiff is not entitled to his fee because the debtor has paid the authority and not him.

Well this fails because the fee is not dependent on the bailiff or anyone else collecting the fee, as said countless times it is only dependent on the debt being passed to the bailiff for enforcement.(see regs)

[elcordobez]

Bailiff advice is tomtubby, that stuff about money paid is proceeds of enforcement is complete rollicks. Enforcement is taking control of goods. He doesnt take control of goods thes no proceeds.

[Bailiff Advice]

And the legislation most certainly doesn't say that the council must pass on the bailiff fees.

 

You appear to have taken NO notice at all of anything that has been said.

 

Here are the facts.

 

The statutory Explanatory Guidance to the Taking Control of Goods (Fees) Regulations 2014 is crystal clear in that the governments intention is that the Compliance Fee is to be deducted first from any payment made (either to the enforcement agent or the creditor). This point has been made clear to all stakeholder groups over that past 2 years. As a member of two Stakeholder group myself I know this to be the case.

 

Second, with maybe one or two exceptions, all 340 local authorities that receive a payment into their account after the debt has been passed to the enforcement agent will divide the 'proceeds' is accordance with Regulation 13 and will forward the Compliance fee back to the enforcement agent. Outlawla has made many FOI requests to local authorities and so far......this is exactly what he has found the case to be.

 

Third; with a Magistrate Court fines it is common knowledge that almost all Magistrate Courts receiving a payment from the debtor after a Warrant has been authorised will actually forward the entire payment to the enforcement so that they can divide the 'proceeds' in accordance with Regulations 13. In fact, there are at least two websites that openly state that they have seen 'hundreds' of such letters from HM Courts confirming exactly this.

 

The new regulations are now nearly 6 months old and whilst there may have been one or two courts or local authorities that wrongly retained all the payment this is now a rare exception indeed.

 

Thankfully you are only a new poster on here and therefore your 'views' are not being given out to debtors and I do hope that remains the case.

[Bailiff Advice]

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

 

That's right. Perhaps now you can visit some other websites and pass these words of wisdom on to them and stop them advising their poor debtors to make payment to the creditor !!!

[Bailiff Advice]

In the morning I will be pleased to address the matter of what happens if the bailiff is unable to 'take control' of any goods and is unable to get any payment from the debtor.

 

The short answer is that if he returns the warrant/Liability Order back to the creditor his 'enforcement power' 'ceases to be exercisable' and accordingly, all bailiff fees die.

 

The local authority may ultimately refer the debt for committal proceedings but the enforcement agents fees will not be included.

[outlawla]

.....The statutory Explanatory Guidance to the Taking Control of Goods (Fees) Regulations 2014 is crystal clear in that the governments intention is that the Compliance Fee is to be deducted first from any payment made (either to the enforcement agent or the creditor).....

 

Quickly looked through this and can't see where it is stated or implied. May have missed it or got the wrong document. Is this the one:

 

Explanatory Memorandum to the Taking Control of Goods (Fees) Regulations 2014

[Bailiff Advice]

Outlawla.

 

Under 8.3 you will be able to read why the government wanted to ensure that the Compliance Fee of £75 is first deducted. It cannot be clearer that this is the governments intention when setting the Taking Control of Goods (Fees) Regulations 2014 onto the statute book.

 

As I have stated above in post 61 with a few exceptions, almost every local authority is now apportioning payments made direct to them after the debt has passed from the local authority in accordance with Regulation 13. I am not sure how many FOI requests that you have made to local authorities on this exact point but I do know that it is a lot. From all the replies that I have seen I cannot see one yet that says different.

 

What has become apparent from this thread (and indeed another one that was unfortunately closed unfortunately a few days ago) is that there are a handful of people seeking to go to most extreme lengths to 'disrupt' enforcement and this cannot be clearer by the constant ways in which those posters seek to find a loophole to exploit. This is the most classic 'freeman on the land' 'debt avoidance' tactic.

 

The fact of the matter is that whether you or anyone else likes it....local authorities and magistrates courts are now apportioning payments made direct to them in accordance with Regulation 13 and deducting the Compliance Fee. Given that the effect of this deduction is that there is still a debt remaining the bailiff is legally permitted to continue enforcement and this will involve him making a personal visit which increases the debt by £235.

 

To conclude....seeking to avoid paying the Compliance Fee of £75 is by far the surest way yet to ensure that the debt increases by £235.

 

With all of the excellent work that you had done in the past with your FOI requests there are frankly far more serious subject matters that you could choose that would be more beneficial (storage charges, periods of payment proposals etc, etc)

[Neckbeard]

The bailiff cheerleaders are still missing the point. Reg 13, 8.3 in the note and all other references to the bailiff taking his fee first only apply when he has taken control of goods or money. It is explaining that when he has done so, he is entitled to subtract his fee first. That is only to be expected - he has done his job and he takes his cut.

 

But nowhere, absolutely nowhere, no matter what the intentions were, does it say that if you pay the council direct that they are legally bound to pass the fee onto the bailiff. Nowhere. Nada. If someone can show exactly where it says this, in any legislation (not consultations) please show us all. Just because this is 'what is happening' does not mean that there is a legal requirement. The council directors (many of who will have vested interests) no doubt believe this is the position, although a few are now questioning it. Also, no doubt that the bailiff companies will continue to spin the line.

 

As I said, legislation clarified what happens when the bailiff has collected proceeds in that they can take their fee first. However, legislation did not give them the right to expect local authorities to pass on payments made directly to them.

[Neckbeard]

That's right. Perhaps now you can visit some other websites and pass these words of wisdom on to them and stop them advising their poor debtors to make payment to the creditor !!!

 

So that concludes that only a bailiff can exercise the powers, and is the only one who can collect the fee. The local authority has no right in collecting the fee and passing it on to the bailiff. Thanks TT.

[unclebulgaria67]

Outlawla.

 

Under 8.3 you will be able to read why the government wanted to ensure that the Compliance Fee of £75 is first deducted. It cannot be clearer that this is the governments intention when setting the Taking Control of Goods (Fees) Regulations 2014 onto the statute book.

 

As I have stated above in post 61 with a few exceptions, almost every local authority is now apportioning payments made direct to them after the debt has passed from the local authority in accordance with Regulation 13.)

 

The only question I have is whether the debtor is informed of the date that the creditor has instructed the EA company ? The date is crucial because this is when an additional liability is created. It cannot just be an administrative step and the debtor is not informed. If it is for council tax, it should be a requirement for councils to send a notice to the debtor that on X date, the account has been passed to X EA company and to detail what this means.

[Bailiff Advice]

Whilst I am happy to continue on this point I cannot see much point in doing so for the reasons outlined in my above post number 65.

 

What I would like to say to those few posters seeking to exploit a loophole is that they should read section 8.3 of the Explanatory Guidance to the Taking Control of Goods (Fees) Regulations 2014 carefully and take note of the following comment from the Ministry of Justice:

 

 

"Without this, successful enforcement could potentially decline significantly and enforcement agents may be encouraged to act in an aggressive manner in order to try and recoup the entire debt.

 

It was therefore decided that enforcement agents should be paid the compliance stage in full first, followed by a pro-rata division of proceeds between enforcement agent and creditor".

 

The new regulations have been debated for 12 years and what is very clear indeed is that they are working and many more people are agreeing payment arrangements at the Compliance stage and; with the exception of 'debt avoidance' websites.....complaints have reduced significantly.

[Neckbeard]

In the morning I will be pleased to address the matter of what happens if the bailiff is unable to 'take control' of any goods and is unable to get any payment from the debtor.

 

The short answer is that if he returns the warrant/Liability Order back to the creditor his 'enforcement power' 'ceases to be exercisable' and accordingly, all bailiff fees die.

 

The local authority may ultimately refer the debt for committal proceedings but the enforcement agents fees will not be included.

 

So this shows that the fee is only payable if the bailiff exercises his power in collecting proceeds. Otherwise, he would be expecting his fee for 'work' already carried out.

[Neckbeard]

Whilst I am happy to continue on this point I cannot see much point in doing so for the reasons outlined in my above post number 65.

 

What I would like to say to those few posters seeking to exploit a loophole is that they should read section 8.3 of the Explanatory Guidance to the Taking Control of Goods (Fees) Regulations 2014 carefully and take note of the following comment from the Ministry of Justice:

 

 

"Without this, successful enforcement could potentially decline significantly and [uenforcement agents may be encouraged to act in an aggressive manner in order to try and recoup the entire debt[/u].It was therefore decided that enforcement agents should be paid the compliance stage in full first, followed by a pro-rata division of proceeds between enforcement agent and creditor".

 

The new regulations have been debated for 12 years and what is very clear indeed is that they are working and many more people are agreeing payment arrangements at the Compliance stage and; with the exception of 'debt avoidance' websites.....complaints have reduced significantly.

 

Again, that consultation is about what happens if the proceeds collected by the bailiff do not reach the level of the debt, nothing more. The bailiffs successfully argued that they should be entitled to take their £75 fee first then split the rest, rather than just split it in the first hand.

 

For example, they manage to collect only £100 - a 50/50 split at that stage would be £50 each. However, if they take their fee first, then split the remainder 50/50, the bailiff gets £87.50, the LA £12.50. That is what that paper is arguing for.

 

There is nothing in it that argues the case about a debtor paying the LA direct. No matter what you believe the intentions were, the legislation has been written with no mention of a LA being legally bound to pass on the fee.

[Bailiff Advice]

So that concludes that only a bailiff can exercise the powers, and is the only one who can collect the fee. The local authority has no right in collecting the fee and passing it on to the bailiff.

 

Please try not to find a 'loophole' in what I have said.

 

The bailiff is the only one who can 'exercise the 'power' to use Schedule 12 and is the only one who can collect the fee. Quite correctly the local authority has no right in collecting the fees.

 

Accordingly, if a debtor has deposited the 'proceeds' into the local authorities bank account (when instructed on the Notice of Enforcement not to do so) then the LA are legally obliged to return the Compliance fee back to the enforcement company.....and they are all doing so.

[brassnecked]

Needs a Test Case to clarify the position, as all law and legislation is open to interpretation.

[Neckbeard]

Accordingly, if a debtor has deposited the 'proceeds' into the local authorities bank account (when instructed on the Notice of Enforcement not to do so) then the LA are legally obliged to return the Compliance fee back to the enforcement company.....and they are all doing so.

 

Where does it say that in any legislation? No matter how many time you assert it is the case, it needs to have backing.

[outlawla]

It would be interesting to know how the fee allocation would work in the following scenario.

 

Here it is:

 

North East Lincolnshire Council have a Liability Order for £60 relating to a previous year's account. I suspect they may now be considering the options available to them to recover the outstanding sum (they were not in agreement of applying to the court to quash the order).

 

It seems the only option available is for it to instruct its bailiff contractor to attempt levying distress (taking control of goods) as all the other options are not available to them. The council has no way of making an attachment to wages nor to benefits (I receive neither) and the sum is far below the amount which would allow the council to instigate bankruptcy or apply to the court for a charging order.

 

Whether the council would instruct its bailiffs is debateable as they have been warned that Humberside Police would be immediately alerted who are more than aware of its contractor's track record. However, this is another matter.

 

Assuming they did instruct the bailiffs. They'd be able to claim a maximum of £310 for their fees (being unable to take control of goods and add the £110 "sale or disposal").

 

The bailiffs of course would not be dealt with and payment to the council would continue as normal for my current year's liability.

 

Because the debt relates to a previous year, the council would be breaking the law if it allocated monies with respect the bailiff's fees, especially if it was stated (or implied) for which years debt my payment was intended. If payments matched exactly the instalment amount (current year), this would be enough to imply that the payment was paying off the current year's liability. I don't see how the council, in these circumstances, could lawfully pay the enforcement contractor unless it paid it itself.

 

EDIT:

 

....What has become apparent from this thread (and indeed another one that was unfortunately closed unfortunately a few days ago) is that there are a handful of people seeking to go to most extreme lengths to 'disrupt' enforcement and this cannot be clearer by the constant ways in which those posters seek to find a loophole to exploit. This is the most classic 'freeman on the land' 'debt avoidance' tactic....

 

Nothing to do with 'freeman on the land' or 'debt avoidance'. I'll give you disrupting enforcement though.