Are the Taking Control of Goods Regulations working

[brassnecked]

A thread to explore what is and isn't working, and highlight issues where the old problems are rearing their head again, like charging multiple fees, refusal of all offers until visit and £235 garnered, application of Sales Fee before even a controlled Goods Order is in place etc.

[Bailiff Advice]

A thread to explore what is and isn't working, and highlight issues where the old problems are rearing their head again, like charging multiple fees, refusal of all offers until visit and £235 garnered, application of Sales Fee before even a controlled Goods Order is in place etc.

 

Excellent thread which I will be pleased to contribute to later today.

[brassnecked]

Great BA lets keep it factual, so we can post actual issues and their frequency, that way it will be of use as PT suggested for MOJ.

[Bailiff Advice]

Firstly, the slightly bad news is that it is now generally believed that the Ministry of Justice will very likely not be publishing the outcome of the 'One Year Review' of the enforcement regulations or making any changes or amendments until the end of the year at the least (if at all).

 

It is much more likely that the government will use the statistics and recommendations from the One Year Review when they undertake the comprehensive 'Three Year Review'.

 

It was hoped that the Ministry of Justice would publish the outcome of the 'One Year' review by the end of February with any amendments being introduced on the common date of 6th April 2016. Given that this date has now passed, there is no available time within the Parliamentary calendar before at least October 2016.

[Bailiff Advice]

A thread to explore what is and isn't working, and highlight issues where the old problems are rearing their head again, like charging multiple fees, refusal of all offers until visit and £235 garnered, application of Sales Fee before even a controlled Goods Order is in place etc.

 

As a few of the regular posters know, I attended a very interesting conference this week on the subject of the pro's and con's of local authorities setting up an in-house bailiff operation and the use of 'Body Worn Video's by enforcement agents (I will address these subjects on a different discussion thread).

 

No less than approx 80 local authority representatives attended (mainly Heads of Revenue) and approx 10 enforcement companies. CIVEA were also in attendance. The overwhelming opinion from those attending was that the Taking Control of Goods Regulations are working and have led to more income being received into the local authorities than before the regulations and a significant reduction in complaints (which was one of the major aims of the government).

 

Most interestingly, unlike the position a year ago, almost all local authorities are now very familiar with the 'pro rata' distribution of payments and very speedily advise their customers that any direct payments will be credited internally to the enforcement company and that the Compliance fee of £75 will have to first be deducted (and the balance apportioned as outlined in the legislation).

[Peterbard]

 

Most interestingly, unlike the position a year ago, almost all local authorities are now very familiar with the 'pro rata' distribution of payments and very speedily advise their customers that any direct payments will be credited internally to the enforcement company and that the Compliance fee of £75 will have to first be deducted (and the balance apportioned as outlined in the legislation).

 

Yes meant to ask you about that, sounds very intersting.

 

The above is good to hear. It was bound to take timeto get to all quarters of the country, as are many other requirements of the act. All those potty FOI requests that were sent about a subject which half the councils were as yet unaware, what a waste of time and money.

[Bailiff Advice]

All those potty FOI requests that were sent about a subject which half the councils were as yet unaware, what a waste of time and money.

 

Not at all DB. The many FOI's highlighted the 'pro rata' distribution and accordingly, a lot of research into the subject matter had to be undertaken. The result being that most LA's are now familiar with how 'direct payments' should be dealt with.

[Peterbard]

Not at all DB. The many FOI's highlighted the 'pro rata' distribution and accordingly, a lot of research into the subject matter had to be undertaken. The result being that most LA's are now familiar with how 'direct payments' should be dealt with.

 

Yes you have a point, I suppose in that way it was very helpful.

[Bailiff Advice]

 

It was hoped that the Ministry of Justice would publish the outcome of the 'One Year' review by the end of February with any amendments being introduced on the common date of 6th April 2016. Given that this date has now passed, there is no available time within the Parliamentary calendar before at least October 2016.

 

I should have added a reason as to why there is so no available time in the Parliamentary calendar.

 

Yesterday the House of Commons retired for the Easter recess. Next week (on 30th March) all government departments have to observe the strict Purdah restrictions which will be in place until the local elections on 6th May. There is an extremely tight 'window' of just a week or so before a second 'Purdah' period commences in the run up to the in-out referendum on the UK's membership of the EU as 23 June 2016.

 

Three weeks after the referendum, Parliament will be in recess until October.

[wonkeydonkey]

Yes meant to ask you about that, sounds very intersting.

 

The above is good to hear. It was bound to take timeto get to all quarters of the country, as are many other requirements of the act. All those potty FOI requests that were sent about a subject which half the councils were as yet unaware, what a waste of time and money.

 

I have to agree with you DB it will indeed avoid confusion if all LA's start singing from the same hymn sheet.

[brassnecked]

I have to agree with you DB it will indeed avoid confusion if all LA's start singing from the same hymn sheet.

 

The Regulations are quite clear as to the apportionment of monies paid direct to the council, and it is good that the LA's seem to be getting it right in the main.

[lookinforinfo]

BN there are several features of the TOCG that give me cause for concern.

The biggest problem I have is the subject of beneficial interest in goods on HP.

I think we have to consider whether it was in the minds of the Legislators to take this into consideration in a situation where it has been that goods that are covered by HP cannot be taken.

It would appear from Schedule 12 [s10] that it was not envisaged - An enforcement agent may take control of goods only if they are goods of the debtor. Can that be much clearer? There is no rider after that states" except if the goods have an inbuilt beneficial interest".

Furthermore where goods under an HP agreement are protected by the Consumer Credit Act even the creditor cannot repossess the goods let alone take them into control without a Court Order and yet an EA apparently can.

It is astonishing to me that the MOJ are still sitting on their hands in this situation.

[brassnecked]

BN there are several features of the TOCG that give me cause for concern.

The biggest problem I have is the subject of beneficial interest in goods on HP.

I think we have to consider whether it was in the minds of the Legislators to take this into consideration in a situation where it has been that goods that are covered by HP cannot be taken.

It would appear from Schedule 12 [s10] that it was not envisaged - An enforcement agent may take control of goods only if they are goods of the debtor. Can that be much clearer? There is no rider after that states" except if the goods have an inbuilt beneficial interest".

Furthermore where goods under an HP agreement are protected by the Consumer Credit Act even the creditor cannot repossess the goods let alone take them into control without a Court Order and yet an EA apparently can.

It is astonishing to me that the MOJ are still sitting on their hands in this situation.

 

That is of concern to me also lookinforinfo. That Beneficial Interest concept is definitely not in TCG, that is down to EAs relying on that County Court Judgment regarding that failed injunction, a strange judgment and much debated on CAG given the wider implications for Finance Companies. Don't see how they can claim Beneficial interest in Lease or Hire where the debtor will never own the vehicle, though, but no doubt an EA will try it on and an Interpleader if the EA ignores the informal procedure laid down in TCG and refuses to hand the vehicle back might be interesting.

[Bailiff Advice]

BN there are several features of the TOCG that give me cause for concern. The biggest problem I have is the subject of beneficial interest in goods on HP.

I think we have to consider whether it was in the minds of the Legislators to take this into consideration in a situation where it has been that goods that are covered by HP cannot be taken.

It would appear from Schedule 12 [s10] that it was not envisaged - An enforcement agent may take control of goods only if they are goods of the debtor.

 

When drafting the regulations it was almost certainly the case that vehicles on finance/HP would be considered exempt (and frankly that is the way in which it should be).

 

The reason why such vehicles can now be seized is purely and simply down to the actions of a highly inexperienced McKenzie Friend encouraging a debtor to issuing legal proceedings after his vehicle had been taken by an enforcement agent. The debtor lost in court and was ordered to pay thousands of pounds in legal fees to the local authorities solicitor. The Judge noted that in the regulations it refers to 'interest' as being 'beneficial interest'.

 

Following the judgment, the countries expert on bailiff law; John Kruse criticised the decision, and stated that the ruling cannot be correct. Unfortunately, a short while afterwards, he reported that he had reviewed the judgment for himself (and consulted with the local authorities legal representatives) and had to agreed with the judges decision.

Edited March 28, 2016 by Andyorch
edit

[Bailiff Advice]

Where I consider that the regulations are going wrong is with the charging of the 'Sale stage fee of £110'.

 

It was feared in the early stages of the regulations that this fee could be quickly turned into a 'aborted removal fee' which had been routinely charged by enforcement agents when enforcing road traffic debts and sadly, that is exactly what I am now seeing. The frequency of the enquiries that I am receiving regarding this fee is frankly frightening.

[Peterbard]

Regarding the beneficial interest.

This was looked at a while ago on here . Since then there has been no similar cases that i am aware of, and it seems to be an assue in theory rather than in practice Most EA i have asked about this just say that they do not take cars on HP, just my limited experience BA will know more.

 

I wrote to John Kruse on the subject and he included my points in his bulletin and was kind enough to respond in person on several occaision to give me his thoughts. He is of the same opinion as the people on here, in that cars on HP should not be taken and the beneficial interest argument is not a valid one in these cases.

 

Personally I think the clause has more to do with interest in terms of jointly owned goods or a charge which endows someone with property in goods but not title.

I also pointed out this which may or may not be relavant.

 

11(1)Subject to paragraphs 9 and 10 and to any other enactment under which goods are protected, an enforcement agent—

(a)may take control of goods anywhere in England and Wales;

 

(b)may take control of any goods that are not exempt.

 

(2)Regulations may authorise him to take control of exempt goods in prescribed circumstances, if he provides the debtor with replacements in accordance with the regulations.

 

These goods are indeed protected under the consumer credit act if one third of the contract price has been paid.

[brassnecked]

Where I consider that the regulations are going wrong is with the charging of the 'Sale stage fee of £110'.

 

It was feared in the early stages of the regulations that this fee could be quickly turned into a 'aborted removal fee' which had been routinely charged by enforcement agents when enforcing road traffic debts and sadly, that is exactly what I am now seeing. The frequency of the enquiries that I am receiving regarding this fee is frankly frightening.

 

That has been my fear also, and it appears that it might well be added along with the £235 where a visit doesn't get a response or access or lead to a Controlled Goods Agreement. As in debtor has no motor outside and refused EA entry.

[Peterbard]

That has been my fear also, and it appears that it might well be added along with the £235 where a visit doesn't get a response or access or lead to a Controlled Goods Agreement. As in debtor has no motor outside and refused EA entry.

 

IIt would be a severe breach of regulations as only goods which are under control can be taken for sale. and the sale fee can only commence when the HCEO attends to remove goods for sale.

[lookinforinfo]

When drafting the regulations it was almost certainly the case that vehicles on finance/HP would be considered exempt (and frankly that is the way in which it should be).

.

 

I would agree with that too, though interestingly the HP vehicles are not included in the exemptions this time round. This possibly led the bailiff companies to try it on or it could be that the

MOJ itself was playing a deep game.

[Bailiff Advice]

A desperately needed change is for the introduction of an additional statutory notice.

 

In the vast majority of cases, debtors are not at home when an enforcement agent visits the property and the 'notices' left by the enforcement agent leave a great deal to be desired and undoubtedly lead to complaints.

 

The titles include 'Enforcement Notice', Removal Notice, Notice of Removal with some of the worst examples referring to 'recommendation for committal proceedings' or considerations being given for 'an application to court to force entry' (council tax debts).

[brassnecked]

.

 

I would agree with that too, though interestingly the HP vehicles are not included in the exemptions this time round. This possibly led the bailiff companies to try it on or it could be that the

MOJ itself was playing a deep game.

Think it was that County court case revolving around injunctions that have opened this avenue to greedy EA's.

[lookinforinfo]

I accept that Brassnecked but I don't think that the bailiff company would have chanced it if vehicles on HP had been included on the Exempt list despite the inclusion of beneficial interest in the new Regulations..

[brassnecked]

I accept that Brassnecked but I don't think that the bailiff company would have chanced it if vehicles on HP had been included on the Exempt list despite the inclusion of beneficial interest in the new Regulations..

No the Beneficial Interest conundrum was and is not part of the Regulations, it came about due to a County court judgment regarding an injunction to prevent siezure.of a vehicle due to a debtor being represented by a Mckenzie.

 

The other issue I have is the offence of Obstructing an EA. Technically a third party, say a Yodel driver is guilty of obstruction if he prevents or interferes with a myopic EA seizing his van because he is parked outside a debtor's house. the concept of obstruction is that wide, and is Strict Liability, so I forsee them trying to use it to close down a challenge, knowing plod will support due to lack of knowledge of the actual rules.

[lookinforinfo]

Well "interest" is mentioned in the General Interpretations of Schedule 12 but doesn't seem to be mentioned anywhere else in the Regulations.

[Peterbard]

Well "interest" is mentioned in the General Interpretations of Schedule 12 but doesn't seem to be mentioned anywhere else in the Regulations.

 

As earlier. In my opinion this definition was never meant to be used in this way.

 

"Interest" is mentioned further down the section in reference to co-owned goods and in section 50 and 61 in the same context.

 

I would be very surprised indeed if the HP issue ever entered the mind of whoever drafted the section.