Removal for sale fee, when can it be charged ?

[Bailiff Advice]

As mentioned a few days ago, CIVEA (The Civil Enforcement Agency) have been in the process of compiling a Guidance Note on the subject of when the 'sale fee' of £110 can be added. I was sent a copy of the Guidance Note last night which I have posted under a new thread (see below). A copy should be appearing on the CIVEA website this weekend.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?453200-Removal-for-sale-fee-when-can-it-be-charged

 

For discussion purposes, a copy of the Guidance is reproduced below:

[Bailiff Advice]

CIVEA Guidance Note

 

The transition from the enforcement to the sale stage and when a sale stage fee becomes applicable

 

How and why the issue arises

 

1.1 Historically, attendance to remove (ATR) fees under the old regime have been contentious, particularly where issues arose as to whether there was an actual ability to remove goods, and whether that was a prerequisite for an ATR fee. The clear aim of the new legislative regime is to remove such uncertainties. 


 

1.2 The "trigger" for the application of a sale stage fee attracted considerable debate during the consultation process. It was even suggested by the MoJ - but countered by CIVEA - that actual removal would have to take place in order to 
justify a sale stage fee. That would lead to an absurd result because, as is known, the catalyst for payment is often the realisation that actual removal of goods is imminent; either when the removal vehicle has been summoned, or when it arrives. Where a removal vehicle has been called, or has arrived, and where payment is then made, it would be inflammatory to have to complete the exercise of removal so as to justify a fee. 


 

 

Legal framework

 


Regulation 5 of the Taking Control of Goods (Fees) Regulations 2014 provides, so far as material:

 

Stages of enforcement for which fees may be recovered - enforcement other than under High Court writs

 

5.-(l) The relevant stages of enforcement under an enforcement power which is not conferred by a High Court writ are as follows -

 

(a) the compliance stage, which comprises all activities relating to enforcement from the receipt by the enforcement agent of instructions to use that procedure in relation to a sum to be recovered up to but not including the commencement of the enforcement stage;

 

(b) the enforcement stage, which comprises all activities relating to enforcement from the first attendant at the premises in relation to the instructions up to but not including the commencement of the sale or disposal stage;

 

© the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at theproperty for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of sale or disposal...

 

 

Guidance

 

3.1 Regulation 5 draws a sharp distinction between the various stages.




 

3.2 A sale stage fee becomes applicable when there is a step-change between the enforcement and sale stages. A "step-change" requires a positive action, the best example of which will be the calling of a removal vehicle (and therefore incurring a liability to a third party contractor). 


 

 

3.3 What will amount to a step-change will be fact-specific, and it is impossible to cover every factual scenario. The following, however, will not amount to a step-change: 


 

a mere intention, or mindset, to remove goods 


 

that a number of enforcement visits have been made so as to meet some sort of 
arbitrary "threshold" for a sale stage fee somehow to become applicable 


 

that an enforcement agent has been at the scene for a length oftime - in other 
words, by the sheer lapse of time 


 

where a vehicle has been immobilised, but before a removal contractor is 
contacted 


 

where a controlled goods agreement has been completed

 




3.4 The above examples are set out to demonstrate that:

 

(i) a sale stage fee does not become automatically applicable,

 

(ii) a passive or default approach is not what the Regulations intend and:

 

(iii) it will require a positive step-change.

[Peterbard]

I think before examine this guidance it should be made clear that this document was produced for the guidance of its agents and does not represent the opinion of the MOJ nor was it approved by them, as we see in fact the MOJ actively rejected several sections.

 

“It was even suggested by the MoJ - but countered by CIVEA - that actual removal would have to take place in order to 
justify a sale stage fee. That would lead to an absurd result because, as is known, the catalyst for payment is often the realisation that actual removal of goods is imminent; either when the removal vehicle has been summoned, or when it arrives. Where a removal vehicle has been called, or has arrived, and where payment is then made, it would be inflammatory to have to complete the exercise of removal so as to justify a fee.”

 

Whilst I agree that the threat of removal of goods may be an effective catalyst for the repayment of the debt, this section seems to overlook the fact that removal of goods (for safe storage) can be achieved under the enforcement stage as per section 13.© of schedule 12. This would give the EA the same opportunity to use this “catalyst”, but of course and more aptly would not enable them to charge the fee. I think this is the point which the MOJ was endeavouring to make.

 

Another more obvious point is that if the EA was using the threat of removal to illicit payment, wouldn't that be enforcement ? Section five says that the sale stage is anything to do with the sale.

[Bailiff Advice]

As I mentioned earlier in this thread, I am aware that the subject of the 'sale fee' is quite prominent in some of the responses to the 'One Year Review' currently being undertaken by the Ministry of Justice and I would hope that any ambiguity is addressed by them as and when any changes are made. I am certain that John Kruse will be addressing this matter with MOJ.

 

PS: The Guidance Note now features on the CIVEA website together with two other Guidance Notes (charging of multiple fees and credit and debit card charges).

 

 

http://www.civea.co.uk/guidance.htm

[Peterbard]

“3.1 Regulation 5 draws a sharp distinction between the various stages. “

Indeed it does, one wonders why then it seems necessary to draw another definition of the distinction of thee stages in this guidance.

 

“3.2 A sale stage fee becomes applicable when there is a step-change between the enforcement and sale stages. A "step-change" requires a positive action, the best example of which will be the calling of a removal vehicle (and therefore incurring a liability to a third party contractor). 
”

 

I find no mention of the term “step change” in the act.. I agree that there must be a positive action which signifies the change from enforcement to sale, and I remember the term being used in the consultation, this was what the draftsman of the instrument has achieved by separating the stages.

 

The positive change is the action prescribed in section 5 and that is the attendance with the intention to take goods for sale, really could not get more positive than that I would have thought.

 

“3.3 What will amount to a step-change will be fact-specific, and it is impossible to cover every factual scenario. The following, however, will not amount to a step-change: 


a mere intention, or mindset, to remove goods 


that a number of enforcement visits have been made so as to meet some sort of 
arbitrary "threshold" for a sale stage fee somehow to become applicable 


that an enforcement agent has been at the scene for a length oftime - in other 
words, by the sheer lapse of time 


where a vehicle has been immobilised, but before a removal contractor is 
contacted 


where a controlled goods agreement has been completed””

 

I agree, the visit has to be made in order to collect for sale as above.

[Peterbard]

As I mentioned earlier in this thread, I am aware that the subject of the 'sale fee' is quite prominent in some of the responses to the 'One Year Review' currently being undertaken by the Ministry of Justice and I would hope that any ambiguity is addressed by them as and when any changes are made. I am certain that John Kruse will be addressing this matter with MOJ.

 

PS: The Guidance Note now features on the CIVEA website together with two other Guidance Notes (charging of multiple fees and credit and debit card charges).

 

 

http://www.civea.co.uk/guidance.htm

 

Yes I am sure he will.

[Peterbard]

"3.4 The above examples are set out to demonstrate that:

(i) a sale stage fee does not become automatically applicable,

 

(ii) a passive or default approach is not what the Regulations intend and:

 

(iii) it will require a positive step-change."

 

All f the above can be answered by this (which i think must be written in invisible ink). "5©the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale"

[Peterbard]

I should just mention that of course the individual enforcment stage fee is due upon the commencement of a particular stage as per the tcog fees regr:

 

4(3) The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.

(4) For the purposes of this regulation, the relevant stage of enforcement is determined according to regulation 5 or 6 as appropriate.

[Peterbard]

Hi

I think most of the misunderstanding is because some do not understand that only controlled goods can be sold. This I thought would be clear to anyone who has looked however briefly at the act, however if you look at the taking control of goods, fees or TCE, goods for sale are always referred to as "Controlled Goods

 

PART 3 SALE OF CONTROLLED GOODS

36.Part 3 not to apply to securities

Notice of sale

37.Minimum period before sale

38.Minimum period of notice of sale

39.Form and contents of notice of sale

40.Method of giving notice of sale

[mikeymack2002]

What are your thoughts as to this statement

 

If you do not sign the Controlled Goods Agreement the enforcement agent can take your goods whilst he is at your property. There will be an additional cost of £110 plus 7.5% for any balance due above £1500 if goods have to be removed and sold.

 

If you do not sign the Controlled Goods Agreement the enforcement agent can take your goods whilst he is at your property. There will be an additional cost of £110 plus 7.5% for any balance due above £1500 if goods have to be removed and sold.

 

Quote taken from the Slough.gov site https://www.slough.gov.uk/council-tax/enforcement-agent-formerly-known-as-bailiffs---role-and-fees.aspx

 

It is clearly stated the goods do not need to be under control for removal so what's the correct version please

[brassnecked]

Perhaps they mean they take control as they remove them, assuming there is a car to take or you have let them in.

[mikeymack2002]

From what they say if you do not sign the agreement then they can remove for sale at this stage and this will incur the fee, next step, due to refusal to sign or agree by the debtor. So the NO controlled agreement argument could be wrong?

 

 

As stated by DB earlier this will be a clear step, that you refuse to enter or sign, so the next step is removal for sale, looks like they have stated this can happen on this visit.

 

 

"If you do not sign the Controlled Goods Agreement the enforcement agent can take your goods whilst he is at your property. There will be an additional cost of £110 plus 7.5% for any balance due above £1500 if goods have to be removed and sold."

[Peterbard]

From what they say if you do not sign the agreement then they can remove for sale at this stage and this will incur the fee, next step, due to refusal to sign or agree by the debtor. So the NO controlled agreement argument could be wrong?

 

 

As stated by DB earlier this will be a clear step, that you refuse to enter or sign, so the next step is removal for sale, looks like they have stated this can happen on this visit.

 

 

"If you do not sign the Controlled Goods Agreement the enforcement agent can take your goods whilst he is at your property. There will be an additional cost of £110 plus 7.5% for any balance due above £1500 if goods have to be removed and sold."

 

If it refers to entry at the sale stage it would be correct, as long as some action had been made to facilitate the sale(they had been taken under control previously). If they mean at the enforcement stage then they are wrong. If the gods were taken for sale at enforcement , they would not be under control, so no sale could be made.

 

As said on here a number of times,(see posts on 6th of October) there are four methods of taking control, not just signing a control goods agreement, goods can be taken and secured, secured on the premises, immobilised, all these are open to the baiif at enforcment, none of them are to do with sale, it is all in the regs. If the debtor refuses to sign a CGA the EA can just remove for storage as this is another method of taking control, but not of sale that has to come later.

 

As EMmunch quite rightly states, there is no case law regarding how the new legislation will be implemented, so we have to look to the legislation and see what is written, any old ideas regarding head c or head h charges must be abandoned as they are not relevant, you must read the regulations.

Smile Cool Question Exclamation Lightbulb Thumbs up

[Peterbard]

Perhaps they mean they take control as they remove them, assuming there is a car to take or you have let them in.

 

NO if they remove the vehicle on the enforcement stage it can only be for enforcment. For sale they have to remove at sale, the fees are payable in accordance with the commencement and period of the various stages (section 4 TCG fees.

[Peterbard]

Perhaps they mean they take control as they remove them, assuming there is a car to take or you have let them in.

 

Perhaps i misunderstood this point. The goods are only under the control of the EA once the procedure under section 13 are completed. So they would only be under control when they were removed for storage, or clamped or there was a completed goods agreement, they cannot be partially controlled.

This enforcement stage will be completed when this action is taken.

 

For the purpose of the sale stage fee the next stage will commence on the next visit.

b)the enforcement stage, which comprises all activities relating to enforcement from the first attendance at the premises in relation to the instructions up to but not including the commencement of the sale or disposal stage

©the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by regulation 14).

 

As said it is all in the legislation, you need only to read it. I could print JKs analysis if you like but it is exactly the same as mine, bassically because it is, as I say just repeating what is in the statute.

[Peterbard]

OK enough of this thread for now, unless there is some new development or someone has a question.

 

I would say though that if anyone js charged a sale fee whilst still at the enforcment stage or before the goods are taken under control must complain and demand the fee returned. All the details are in this thread as to why. The more people ignore this the more it will happen and once it becomes standard practice it will be even harder to stop.

[Coughdrop]

 

Quote taken from the Slough.gov site https://www.slough.gov.uk/council-ta...-and-fees.aspx

 

It is clearly stated the goods do not need to be under control for removal so what's the correct version please

 

 

 

As someone once said to me!

 

 

 

It is normally under an ACT, basics dear boys basics

 

 

I therefore refer you to the Act rather than a council website. The CIVEA guidance is a help. It is possible to argue certain points still, even using the Act. For example, one could argue easily that removal must be to the place of sale, so if removed elsewhere for storage, the sale stage fee cannot be charged. One then looks to disbursements.

 

I'm not going to list all the issues I can think of as it is, to be honest, pointless. I am waiting for the review to come out. I hope that will address this issue and make everything clear. In the meantime, debate is fine, but what is important is what is happening on the ground, in the real world, to debtors.

[brassnecked]

Agree Coughdrop, all the conjecture in the world will not address any shenanigans out in the field.

[mikeymack2002]

Its a good job these posts are in the virtual world then as no harm no foul. Discuss away nice misquote by the way, as that Council are ACTING UNDER THE SAID ACT!!

 

 

Shiver me timbers

[Peterbard]

Its a good job these posts are in the virtual world then as no harm no foul. Discuss away nice misquote by the way, as that Council are ACTING UNDER THE SAID ACT!!

 

 

Shiver me timbers

 

MM, you say these posts are incorrect, I have one question, how the hell would you know ?

[mikeymack2002]

Never did I say the posts were incorrect I said nice misquote that's all, so please show me where I said the posts were wrong? I didn't.

[Coughdrop]

Its a good job these posts are in the virtual world then as no harm no foul. Nice misquote by the way, as that Council are ACTING UNDER THE SAID ACT!!

 

 

Shiver me timbers

 

Really? Where was the misquote then? I referred you to the Act itself rather than a council's take on the Act. Far better to go back to the source legislation - basics, dear boy, basics!

 

Never did I say the posts were incorrect I said nice misquote that's all, so please show me where I said the posts were wrong? I didn't.

 

Yawn!

[brassnecked]

Let's go round again, maybe we'll all agree next time (apologies to the Average White band)

[Peterbard]

Let's go round again, maybe we'll all agree next time (apologies to the Average White band)

 

I don't really see what there is to disagree on TBH.I state what the legislation says, if someone wishes to dispute it on the grounds that I have misinterpreted it , then this is welcome. No one seems to want to, with the exception of E Munch, which was a contribution greatly appreciated.

 

The argument presented by most is that , this is what should happen etc. it is really irrelevant because the legislation states what must happen. It is frustrating from my point of view because all the legislation and opinion I have quoted and people still keep raising points which have already be addressed, as if the information was not there.

[brassnecked]

Perhaps they hope to find an alternative interpretation DB