Local authorities and 'in house' bailiff operations. A discussion thread.

[Peterbard]

DB. The council will often get one of their staff currently doing another job to get a certificate so no they would not necessarily arrive at the council already holding a certificate. Furthermore the form us used for renewals as well as first applications so every EA will have to fill one out every 2 years. There is a couple of tick boxes right at the start of the form. Someone renewing a certificate will give their works details that apply at the moment they fill out the form. They may at that time be employed by a local authority.

 

 

As for the scale we seem to agree there is only one scale of fees and it is applicable to all EAs (other than HCEOs) whether or not they are employed by a local authority. There is no need to continue discussing but I will end by saying I thought your comment in post # "So does this meant that the council consider that their own fees scale is applicable when bailiff are in house" meant you believed a council had their won fees scale separate from that in the TCoG(Fees) Regs.

 

Hi yes probably. I was referring to the situation pre TCE when the authority did have a fee scale ( as distress was due to the authority) under schedule 5, not the current situation, my point is that it is a different ball game now.

 

Must say that your description of a post apocalyptic scene very much reminded me of Manchesters Moss Side.

 

Incidentally my attention was drawn to the fact that in house county court bailiffs use a completely different fee scale(thanks BA), is this something you have knowledge of ?

[Peterbard]

HI

Whilst he trip around the act has been very pleasant.

The question which remains is, can an EA licensed under section 64 of the TCE, take control of goods if employed directly by an authority (not as part of an external enforcement agency).

I am of the opinion that he cannot.

There is much direct evidence to support my view, mainly in the act itself. The fees were calculated to support an external bailiff arrangement, the transfer of the power to an external body(section 62), the allocation of proceeds to another body(the authority) section 13, the method of terminating an enforcement power section 17 to name a few

[brassnecked]

Agree DB that the Regs were designed for outsourced enforcement, but LA's will use their own interpretation to use internal enforcement as a revenue stream.

[Bailiff Advice]

I can remember this option being discussed back in 2007 and a few commentators saying exactly what you have just said.

 

Indeed it was. TCE received Royal Assent in 2007 but Part 3 (Taking Control Of Goods) was the last part to be implemented. It was effectively 'put on ice' as the government at that time pledged that Part 3 would not come into effect under an independent regulator had been appointed. Not long afterwards, the government announced that their preferred regulatory body would be the SIA and with rumours circulating that LA's were looking at skimming off the Compliance stage, views were sought as to whether local authority 'back office' staff in revenue depts should also be SIA licensed. Nothing came of this as the SIA had their own problems to deal with. Nonetheless, it has been widely known for quite a few years that local authorities would be looking at way in which they could undertake the 'Compliance stage'.

 

What is certain is that local authorities (or creditors) are not permitted under the regulations to undertake the Compliance stage'. Only the enforcement agency (or agent) can undertake this role.

[mikeymack2002]

Have a read here https://ceaa.co.uk/ about a meeting in Luton. It's in the rs feeds for today from Lacef

[brassnecked]

Indeed it was. TCE received Royal Assent in 2007 but Part 3 (Taking Control Of Goods) was the last part to be implemented. It was effectively 'put on ice' as the government at that time pledged that Part 3 would not come into effect under an independent regulator had been appointed. Not long afterwards, the government announced that their preferred regulatory body would be the SIA and with rumours circulating that LA's were looking at skimming off the Compliance stage, views were sought as to whether local authority 'back office' staff in revenue depts should also be SIA licensed. Nothing came of this as the SIA had their own problems to deal with. Nonetheless, it has been widely known for quite a few years that local authorities would be looking at way in which they could undertake the 'Compliance stage'.

 

What is certain is that local authorities (or creditors) are not permitted under the regulations to undertake the Compliance stage'. Only the enforcement agency (or agent) can undertake this role.

That of itself makes total in house bailiff provision dodgy or a very grey area under the regs then.?

 

A point for E Munch regarding raggedy EA's perhaps they should try to sell the "Big Issue" to the debtors they visit to boost their income.

[Bailiff Advice]

Have a read here https://ceaa.co.uk/ about a meeting in Luton. It's in the rs feeds for today from Lacef

 

I hadn't realised that the full programme had yet been released. It is expected that many local authorities will be attending and I am not at all surprised given the importance of the two subject matters (In House bailiff enforcement and the use of BWV..Body Worn Camera's).

 

I am really looking forward to the event and to hearing the views of the local authorities.

 

https://ceaa.co.uk

[brassnecked]

Have a read here https://ceaa.co.uk/ about a meeting in Luton. It's in the rs feeds for today from Lacef

Interesting MM

[mikeymack2002]

If you are in the job so to speak it's free if not its £200 to go grr..

[mikeymack2002]

BA I thought if they do make known the pro's and con's of BWV then this will indeed be cracking topic..

[E Munch]

MM it might help the Poole Councillor who's angst started this discussion if you sent him the link to the conference as he might want to attend.

[Bailiff Advice]

 

What is certain is that local authorities (or creditors) are not permitted under the regulations to undertake the Compliance stage'. Only the enforcement agency (or agent) can undertake this role.

 

The Compliance stage consists of many different tasks. Some of which are as follows:

 

Setting up an account for the debtor.

 

Issuing the Notice of Enforcement to the debtor.

 

Accepting

online

payments following the issue of the NoE.

 

Ensure that staff are available 7 days a week to accept payments

by phone.

 

Provide trained staff to consider Income & Expenditures and correspondence regarding 'vulnerability'.

 

Provide computer systems to monitor payment arrangements.

 

etc, etc.

 

Crucial to the above is the issuing of the Notice of Enforcement . All other tasks flow once the NoE has been given to the debtor. The regulations specifically provide (and I am sure that this intentional) that the Notice of Enforcement (NoE) must (not may) only be given by either:

 

The enforcement agent.

 

or:

 

The enforcement agents office.

[E Munch]

I don't know if any of you recall but the fee structure was created by an independent economist hired by the MoJ to investigate what enforcement cost and to come up with a scale of fees that adequately rewarded the EA for their work. In the economist's report he pointed out that the scale was not to be tinkered with or it would fail in the objectives set. There was not an objection to the scale being used by in-house operations but only if they did the whole job. If the council do the compliance stage and only pass the hard to collect cases onto the private EAs the council get the cream for sending a letter and answering phone calls and the EA gets a reduced income for doing the costly visiting. It is entirely against the point of the scheme yet as BA has said Manchester City Council is asking for bids to do parking warrants starting after the council have done the compliance stage.

 

 

The relevant parts of the economists report are reproduced below:-

 

 

20.3. Other fee issues

20.3.1. Contracting between EACs and creditors

If the proposed Fee Structure is to be successful it is important that creditors cannot use contractual arrangements with EACs/ HCEACs in order to circumvent the level of fees. Whilst contracts may specify quality and reporting requirements, they should neither be able to change the level of any of the new Fee Structure fees, nor to challenge the right of the EAC/ HCEAC to collect those fees where they are appropriately charged.

If contracts amend or remove any of the proposed Fee Structure fees it would jeopardise the important objective which the new Fee Structure attempts to achieve: to guarantee a fair reward to EACs/ HCEACs by setting fees in relation to costs, and allowing a fair mark‐up on those costs. If creditors are able to use contracts to circumvent the EAC’s/ HCEAC’s right to charge any of the fees, the profit margins earned could be reduced below the target profit margin as a result.

Even where fees are charged at appropriate levels in the first instance, creditors may attempt to use contracts to require the EAC/ HCEAC to pass on a proportion of the Enforcement fees. Since this practice would have a similar effect to amending the actual fee levels it should also not be allowed. Similarly any attempts by EACs/ HCEACs themselves to obtain a competitive price advantage by offering to reduce fees below the Fee Structure level should not be allowed, and competitive differentiation should be made on quality of service alone.

In conclusion, ensuring that the contracts between EACs/ HCEACs and creditors do not attempt to circumvent the proposed Fee Structure in any way is an important role for legislation and regulation.

 

 

 

20.3.2. “Inhouse” Enforcement Agents

The term “In‐house Enforcement Agent” is used to refer to those EAs who are directly employed by a creditor, which seeks to enforce its own debts. “In‐house Enforcement Agents” are employed by:County Courts, which use employed staff (County Court bailiffs) to enforce their debt;HMRC; and some local authorities who employ their own EAs to enforce debts.

When “In‐house” EAs are employed, the structure of the relationship between entities in the Enforcement framework is changed: instead of three parties (being creditor, debtor, and Enforcement agent), there are now only two (creditor and debtor). The principal agent relationship no longer exists between the creditor and EA as these now represent a single entity.

The Proposed Fee Structure is robust for application to “In‐house Enforcement Agents”, since these EAs must incur essentially the same costs as “third‐party” EAs, and there is no particular reason to assume that the level of these costs should be any different between “In‐house” and “third‐party” Enforcement Agents. Therefore, EAs should charge exactly the same fees whether they are operating on an “in‐house” or “third‐party” basis.

[Bailiff Advice]

 

Crucial to the above is the issuing of the Notice of Enforcement . All other tasks flow once the NoE has been given to the debtor. The regulations specifically provide (and I am sure that this intentional) that the Notice to Owner must (not may) only be given by either:

 

The enforcement agent.

 

or:

 

The enforcement agents office.

 

In relation to the above, the actual legislation can be found under Regulation 8(2) of the Taking Control of Goods Regulations 2013: This provides as follows:

 

 

Method of giving notice and who must give it

 

8.—(1)Notice of enforcement must be given—

(a) by post addressed to the debtor at the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(b) by fax or other means of electronic communication;

 

© by delivery by hand through the letter box of the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(d) where there is no letterbox, by affixing the notice at or in a place where it is likely to come to the attention of the debtor;

 

(e) where the debtor is an individual, to the debtor personally; or

 

(f) where the debtor is not an individual (but is, for example, a company, corporation or partnership), by delivering the notice to—

 

(i) the place, or one of the places, where the debtor carries on a trade or business; or

 

(ii) the registered office of the company or partnership.

 

(2)

Notice must be given by the enforcement agent or the enforcement agent’s office.

http://www.legislation.gov.uk/uksi/2013/1894/regulation/8/made?view=plain

[E Munch]

I can't find the post now but I thought someone above suggested the County Court have their own scale of fees. That is news to me so has anyone got some proof please?

The government website just links to the CAB website which fives the normal scale for the Schedule 12 process.

https://www.gov.uk/your-rights-bailiffs/what-you-can-do-when-a-bailiff-visits

[Peterbard]

Mornin all

 

Yes it was me here is the SI and a brief explanation.

 

County Court bailiffs Fee scales:

 

The fees that may be charged by County Court bailiffs had previously been under the Civil Proceedings Fees Order 2008 but this was amended by the introduction of The Civil Proceedings Fees (Amendment) Order 2014 (SI 877 of 2014) which was laid Parliament on 27th March 2015 and came into effect on 22nd April 2015 (link below).

 

The relevant fees are under Schedule 1 and you would need to scroll down to Item 8 (Enforcment in the County Court).

 

As you will see under Item 8.1, once a judgment has been obtained, the creditor must pay an application fee of £100 to request a warrant. Additional fees for a charging order etc can be found under Items 8.1 through to 8.9.

Once a warrant is issued, a County Court bailiff can enforce the debt. The fees that may be charged are under Item 9 (Sale County Court only).

 

It should be noted that the fee scale does not provide for the debtor to be charged an ‘attendance/visit’ fee. It would seem that the reason for this is because the creditor must pay an application fee of £100 to request a warrant and this amount is added to the debt.

 

http://www.legislation.gov.uk/uksi/2014/874/schedule/made

[Peterbard]

In relation to the above, the actual legislation can be found under Regulation 8 (e) of the Taking Control of Goods Regulations 2013: This provides as follows:

 

 

Method of giving notice and who must give it

 

8.—(1)Notice of enforcement must be given—

 

(a) by post addressed to the debtor at the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(b) by fax or other means of electronic communication;

 

© by delivery by hand through the letter box of the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(d) where there is no letterbox, by affixing the notice at or in a place where it is likely to come to the attention of the debtor;

 

(e) where the debtor is an individual, to the debtor personally; or

 

(f) where the debtor is not an individual (but is, for example, a company, corporation or partnership), by delivering the notice to—

 

(i) the place, or one of the places, where the debtor carries on a trade or business; or

 

(ii) the registered office of the company or partnership.

 

(2)

Notice must be given by the enforcement agent or the enforcement agent’s office.

 

 

http://www.legislation.gov.uk/uksi/2013/1894/regulation/8/made?view=plain

 

Yes you cannot get much clearer than that. I thought I had seen something along the lines of this, excellent find.

[Bailiff Advice]

I can't find the post now but I thought someone above suggested the County Court have their own scale of fees. That is news to me so has anyone got some proof please?

The government website just links to the CAB website which fives the normal scale for the Schedule 12 process.

https://www.gov.uk/your-rights-bailiffs/what-you-can-do-when-a-bailiff-visits

 

It was even a surprise to the HCEOA !! I was the person that brought the County Court bailiffs fee scale to their attention in 2014.

 

I contacted MoJ at the time and they confirmed that the present position is that county court bailiffs (as employees of HMCTS) are not subject to the Taking Control of Goods (Fees) Regulations 2014. They also retain the title of Bailiff and opposed to Enforcement Agent.

 

I am working out of another office today so I have sent a message to DD to post a link to the regs for me. He and I have had various discussions on this subject.

 

PS: Thank you DD.

[Peterbard]

DD ?

 

No probs.

[Peterbard]

I think what we need to do is find out what mechanism they are using to "get around" the legislation, or even of there is no mechanism required as EM indicates.

[AndyOrch]

Thread tidied and off topic posts removed...apologies for any derailment.

 

Andyorch