Are the Taking Control of Goods Regulations working

[brassnecked]

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.

Exactly so DB I concur, the "Beneficial Interst" and EA's taking HP motors as of right is down to that County Court Injunction case, something that MOJ would definitely not had in mind when drafting the Regulations. They would still see HP and Lease Hire as exempt.

 

They must get a grip on this before the Finance Industry starts attacking bailiffs with litigation when a HP vehicle is sold without their express consent.

[Peterbard]

Still as BA said the debtor should not consider hP goods as being exempt per se until this is sorted, err on the side of caution would be the correct advice.

[brassnecked]

Still as BA said the debtor should not consider hP goods as being exempt per se until this is sorted, err on the side of caution would be the correct advice.

Absolutely EA's will probably go in hard and take what isn't nailed down using Beneficial Interest to drive a hole through the Exemptions.

[Peterbard]

Absolutely EA's will probably go in hard and take what isn't nailed down using Beneficial Interest to drive a hole through the Exemptions.

 

Yes and we al know who we have to thank for that.

[brassnecked]

Yes and we al know who we have to thank for that.

A misguided debtor and some extremely bad advice to engage in quite unneccessary litigation to obtain an injunction, when the simple and effective remedy lay within the Regulations.

[Leakie]

Just because they have been given bad advice ., it should not be a green light for the EA's

or the powers to be to let it happen.

 

Two wrongs do not make it right.

[brassnecked]

Just because they have been given bad advice ., it should not be a green light for the EA's

or the powers to be to let it happen.

 

Two wrongs do not make it right.

The advice was so bad as it ignored the Statutory third party claim procedure that is or probably now was simple and effective, it encouraged the debtor to go for an injunction, he lost in County Court, which of itself isn't precedent, but until challenged in a higher court EAs will use the Beneficial Interest concept the CC Judge used to allow a HP motor to be taken and sold expressly against TCG or so it would seem.

 

So maybe it will be Finance Industry, as in Banks etc, v The Enforcement Industry sooner or later, I think a fiver on the Enforcement industry to win is a reasonable bet unfortunately, they seem to be getting it all their own way at present, along with inappropriate use of the Sales Fee. Reminds me of Capquita's upfront Fee Fraud from the days of yore.

[Bailiff Advice]

This post is 'off topic' but given the subject matter, I am sure the regulars poster will excuse me.

 

Last night Bankfodder announced that our hard working and fair minded moderator CitizenB, is leaving the forum after nine years.

 

I will miss her and I am sure that others will as well. Messages can be posted here:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?462003-citizenB&p=4882469#post4882469

Edited March 30, 2016 by Andyorch
edit

[brassnecked]

Absolutely BA CB deserves mentions in Dispatches for long service.

[Sir Vere Brayne d'Emmidge]

Good afternoon folks, been missing a while and thought it would be a good idea to contribute to this thread.

 

The regulations are crystral clear, but there will always be a rougue element in any industry who make life difficult; fortunately a vast number of these have been found out and stripped of the General Certificate, will can't work in the role of an EA nad never wil again . . . good riddance!

 

1) Vehicles which, after an HPI check, come back as on Finance are untouchable.

2) Vehicles displaying a blue badge, even if not registered as an invalid carriage, can not be seized.

3) Miopic Enforcement Agents who clamp, try to remove a vehicle without having made a proper enquiry with DVLA to ascertain ownership/registerd keeper details, followed by an HPI check, should not be on the streets anymore.

4) The crime of "obstucting an Enforcemet Agent" only happens when any person (the debtor, or a third party {which includes misguided Police Officers}) prevent the Agent to proceed with his/her lawful business.

5) An Enforcement Agent must be satisfied that before removing goods these belong to the debtor, or jointly owned by the debtor and a third party, if there is suspicion that a third party has an interest in goods removed then a separate Notice of Goods Removed for Storage or Sale has to be given to such third party, alongside instructions on how to apply to Court for a delay in selling the goods.

6) The £110.00 removal/sale stage fee is applicable only when items are physically removed from the debtor's premises.

 

My opinion on the latter: this fee is far to low to cover the actual cost of removal, since no other costs can be added to a warrant for the exeption of: storage of vehicles charges, locksmith charges and auctioneers expenses/remunaration.

 

The removal fee should be scrapped and the actual cost of removing the goods, plus the cost of the time spent in removing these goods should be allowed.

 

There is a further issue I have about "tools of the trade"

 

In the bad old days one could not remove the first £250.00 worth tools of the trade, which meant that a taxi driver could not have his cab removed because the first £250 were part of the value of his vehicle, now, the value of such goods is £1,350.00 and there is, I think misunderstanding, that if such tool is worth more than £1,350.00 it can be taken control of . . . what does the rest of the panel think?

Edited March 31, 2016 by Sir Vere Brayne d'Emmidge

[Peterbard]

I think broadly I would agree, at least based on how i read the legislation and authority i have read. Not hands on experience.

 

I would dissagree on some minor points, one of which is the removal of property.

Property can be removed for storage as part of the enforcment stage and thus not trigger the sale stage or fee. The defining thing would be the notice required to be sent prior to sale.

 

I was unaware of the procedure before the new regs, but everything I have read says that the vehicle can be taken if the value is over the limit, under the TCE , although the reasoning for this does seem somewhat vague TBH.

Perhaps the reason for this is reliance on the tools of trade exemption in the case of vehicles where the vehicle would be exempt on any case if essential for the debtors trade or profession. After all you cannot have a proportion of a car exempt it is either exempt for the purposes of trade or it isnt

 

In other words the limit was really designed for a number if individual items, so the debtor could chose which he wished to retain. I believe the wording of the regulation may support this.

[Sir Vere Brayne d'Emmidge]

Property can be removed for storage as part of the enforcment stage and thus not trigger the sale stage or fee. The defining thing would be the notice required to be sent prior to sale.

 

 

The Enforcement Agency will post a letter to the debtor, stating that goods taken into storage will be sold at auction ten days after the date stamp on this correspondence the day after the goods have being removed.

 

Which means that with the letter in transit if one wants to rescue the goods from the pound the £110.00 is payable.

 

My gripe with this is that prior to the new regulations goods removal was £150.00 for TMA and £200.00 for Magistrate/Council Tax, which barely covered the cost of a tow truck for cars/vans.

 

As I mentioned before, the Removal/sale fee should be scrapped and the actual cost of the removal charged to the debtor, be it a few quid for taking TVs and computers to the local Auction House or the £500.00+ to get a heavy duty tow truck to remove an HGV to a secure location.

[Peterbard]

The Enforcement Agency will post a letter to the debtor, stating that goods taken into storage will be sold at auction ten days after the date stamp on this correspondence the day after the goods have being removed.

 

Which means that with the letter in transit if one wants to rescue the goods from the pound the £110.00 is payable.

 

My gripe with this is that prior to the new regulations goods removal was £150.00 for TMA and £200.00 for Magistrate/Council Tax, which barely covered the cost of a tow truck for cars/vans.

 

As I mentioned before, the Removal/sale fee should be scrapped and the actual cost of the removal charged to the debtor, be it a few quid for taking TVs and computers to the local Auction House or the £500.00+ to get a heavy duty tow truck to remove an HGV to a secure location.

 

Yes thats right if the goods are taken for sale , i think the regs say seven clear days. If the goods are just taken for storage (taken under control) no notice need be sent as they are not yet being taken for sale.

 

The problem with just saying, the amount for the actual cost is that it leaves it open to interpretation by the EA, and we know what happened last time they had that latitude.

[brassnecked]

Regarding Obstruction Sir Vere, you indicate a Police Officer can be prosecuted for the offence. What circumstances would that arise would it be in one circumstance when a Police officer arrests the EA for refusing to leave a property when the debtor will not deal with them, and the door is firmly shut? As to a third party could say a Yodel or FedEx driver whose van is clamped by a myopic bailiff whilst parked outside the debtors property physically prevents the clamp going on be done after all it is Strict Liability.

 

As to the Sales Fee certain EA companies are adding it to the £235 when they visit, whether they get a CGO or not.

 

And yes the £110 would barely cover towing away a Quadricycle.

[Bailiff Advice]

 

My gripe with this is that prior to the new regulations goods removal was £150.00 for TMA and £200.00 for Magistrate/Council Tax, which barely covered the cost of a tow truck for cars/vans.

 

As I mentioned before, the Removal/sale fee should be scrapped and the actual cost of the removal charged to the debtor, be it a few quid for taking TVs and computers to the local Auction House or the £500.00+ to get a heavy duty tow truck to remove an HGV to a secure location.

 

Prior to April 2014 enforcement companies were charging 'attending to remove' or actual 'removal' fees and in many cases the charge was simply awful.....it was common to come across ATR fees of £500 for non domestic rate cases.

 

In the case of the 'sale fee' of £110, it has to be remembered that this figure was arrived at by an economist contracted by the Ministry of Justice during the consultation period. The Ministry of Justice stated in their response to the consultation that they will revisit fees 'within' three years. Accordingly, I would expect all fees to rise sometime next year.

 

Taking your scenario into consideration (heavy tow truck to remove an HGV), naturally the £110 fee would not cover the 'actual' costs. However, the regulations have been adapted to cover such circumstances by providing that the enforcement company can apply to the court for permission to charge the actual costs.

[Sir Vere Brayne d'Emmidge]

Unfortunately very few do, the process is fairly longwinded and the result not certain, so they just swallow it up.

[Sir Vere Brayne d'Emmidge]

Regarding Obstruction Sir Vere, you indicate a Police Officer can be prosecuted for the offence. What circumstances would that arise would it be in one circumstance when a Police officer arrests the EA for refusing to leave a property when the debtor will not deal with them, and the door is firmly shut? As to a third party could say a Yodel or FedEx driver whose van is clamped by a myopic bailiff whilst parked outside the debtors property physically prevents the clamp going on be done after all it is Strict Liability.

 

As to the Sales Fee certain EA companies are adding it to the £235 when they visit, whether they get a CGO or not.

 

And yes the £110 would barely cover towing away a Quadricycle.

 

The legislation is very clear: any person obstructing an enforcement agent . . . is guilty of an offence . . . couple of real life scenarios where the Police Officers don't know/are unsure about Distress Law

 

1) After gaining peaceful entry in a property to execute a warrant the debtor calls the Police and the Police remove the EA from the premises.

2) After clamping a vehicle belonging to the debtor a third party calls the Police and tells them that the vehicle is theirs, produces a hand written receipt for an X amount of money for purchasing such vehicle a week before, still have the green slip from the V5 (blank) but can not produce a current Insurance Certificate. The Police Officer not sure about it , doesn't do a PNC check on the vehicle, but force the bailiff to remove the clamp. In this case, when a second warrant was issued, six months later, for the same debtor and an enquiry having being made to DVLA to ascertain the RK of that same vehicle, it was still in the debtor's name.

 

To keep a good relationship with the bos in blue no individual EA or Agency will look to prosecute a Police Officer or their immediate superior.

 

As far as miopic bailifs, I have written about this before.

 

If Enforcement Agencies add the £110.00 to the £235.00 without having removed goods they are breaking the law and should be reported to the appropriate authority.

 

The reality, gentlemen and ladies, is that there are people out there who know that the speed limit on a motorway is 70mph but constantly travel at speeds in excess of that limit . . . the same goes for TC&TEA . . . there are some Agents and Agencies who still break the rules; slowly but surely the are found out and removed from the profession.

[lookinforinfo]

I feel I may be a bit of a lone wolf on this one.

I have complained about it before without getting much support or agreement but it is the subject of the £235 fee.

 

As I understand it the fee was decided based upon an EA entering a property and taking control of goods. This could be a labour intensive task

since all the items listed have to have their serial numbers included or some other form of identification. And I can understand that the fee

for doing that is not exorbitant.

 

In practice it seems that goods taken under control in a property are almost infinitesimal. And why would an EA want to spend several hours

listing goods when it is so much easier just to pop and post a letter through the door and "earn" their fee that way. The whole point of bailiffs is that they are supposed to take goods into their control with a view to selling them if the debtor has no other means of repaying the debt. This is the way that they have been used since time immemorial.

 

I accept that the £ 235 letter through the door works since it so scares the bejasus out of the debtor that the last thing they want is to have

these guys in their house adding even more to the bill. Of course the bailiff has no intention of taking goods under control once he has already

secured his fee as like anyone else he does not want to work for nothing.

 

 

However to charge £235 just to deliver a letter with apparently no real intention of ever taking goods under control seems unjust, unfair and

bordering on fraudulent. I believe that the MOJ did intend to make it viable for EAs to control goods and not for the bailiffs to circumnavigate

the Regs in this way.

[Peterbard]

I agree. This is one aspect that is not working as envisaged.

 

The Enforcement fee was set at this level because it was hoped that it would give the EA more time to engage with the debtor:

To explore repayment affordability, negotiate with the creditor, and to ensure that an equitable agreement could be reached .

 

In hindsight it was perhaps naive. Hundreds of years of being the boogey man, is not an image that can be shaken off overnight.

[brassnecked]

Lookedinforinfo and DB, agree that they should get a CGA to ground the fee, but as there is no legal compulsion to speak to, deal with. open the door to them, or even if is a nasty individual hollering threats of prison for Council tax, to empty a chamber pot from the bedroom window, the EA is stuffed if the debtor will not engage, of course ifthere is a vehicle, or a motorcycle well the EA will be after that like a shot.

 

Don't think MOJ would agree fee is invalid without CGA.

[Peterbard]

Lookedinforinfo and DB, agree that they should get a CGA to ground the fee, but as there is no legal compulsion to speak to, deal with. open the door to them, or even if is a nasty individual hollering threats of prison for Council tax, to empty a chamber pot from the bedroom window, the EA is stuffed if the debtor will not engage, of course ifthere is a vehicle, or a motorcycle well the EA will be after that like a shot.

 

Don't think MOJ would agree fee is invalid without CGA.

 

Yes that is the attitude I was referring to, not getting at you BN but we really have to get past that somehow.

[brassnecked]

Yes that is the attitude I was referring to, not getting at you BN but we really have to get past that somehow.

The best scenario is early engagement, unfortunately it would appear that many EA companies are refusing all reasonable offers at Compliance Stage, to engineer a visit to claim the £235.

[Peterbard]

Well this is what is being said, I dont know if there is empirical data to support this, we always thought it would be a danger though.

I was reading a trade mag over the weekend and one of the major players say they generally send a minimum of four notices over an extended compliance period and make two phone calls at different times of the day(if they have the number).

[brassnecked]

Well this is what is being said, I dont know if there is empirical data to support this, we always thought it would be a danger though.

I was reading a trade mag over the weekend and one of the major players say they generally send a minimum of four notices over an extended compliance period and make two phone calls at different times of the day(if they have the number).

Things that make you go hmmm.

[lookinforinfo]

Thanks guys for agreeing-I wasn't expecting that.

It would be interesting to know how the numbers of bailiffs entering property and "seizing" goods [i know, I know its not called that any more ] has dropped since the CGA has come into force compared to before the Act.

 

It cannot be because debtors are wealthier now than a couple of years so it must lie with the Bailiffs not wanting to take the time to do the job they are paid for. Understandable I suppose but

you would then have to ask if they are avoiding the seizing but I imagine still collecting similar percentages to the previous Act, it would rather beg this question . If they can do it now

without seizure why could they not have done it in the past without the need to humiliate people by rummaging through their homes.

 

I cannot see why a two tier system for enforcement could not be introduced. The first visit would be say £100 for the visit with the threat of a further £135 if they have to take control of goods. That would mitigate the financial effect on the debtor as well as hoping to lessen the sense of grievance against bailiffs and perhaps for them to appreciate that the bailiffs are

now trying to help by not charging the full amount straight away.

 

The other point that I should have raised on my first post about this fee is that as there is no intention to take control, there is no compunction for an actual bailiff to call. It may often by done by a local person from the office who just drops the letter of enforcement quietly through the door to avoid meeting the householder. This of course helps the bailiff no end -£235 without

even having to make the visit. I realise it is difficult to quantify how widespread it is since the whole point of the exercise is now to avoid contact except over the phone.

Edited April 3, 2016 by lookinforinfo
removing superfluous word.