Vulnerable debtors...should all bailiff fees be removed....should the account be returned to the council/creditor?

[Bailiff Advice]

Since the introduction of the Taking Control of Goods Regulations 2013, it has been very interesting to observe the number of forum posts (here and on all other websites) where debtors (and indeed regular forum posters) consider that in cases where a debtor is identified as being ''vulnerable', that the local authority (or creditor) should be obliged to recall the account from an enforcement agent.....and remove all bailiff fees.

 

In the majority of cases, the fees under discussion will be £310, consisting of a Compliance Fee of £75 (applied when sending the Notice of Enforcement) and an Enforcement Fee of £235 (applied when an enforcement agent attends the debtors premises in person).

 

In the following post I have outlined my opinion on the above.

[Bailiff Advice]

Should all bailiff fees be removed

 

Not according to legislation. The applicable legislation is Regulation 12 of the Taking Control of Goods (Fees) Regulations 2014 (entitled: Recovery of fees from vulnerable debtors.

 

 

http://www.legislation.gov.uk/uksi/2014/1/regulation/12/made?view=plain

 

 

Regulation 12:

 

Where the debtor is a vulnerable person, the fee or fees due for

the enforcement stage

(or, where regulation 6 applies, the first, or first and second, enforcement stages as appropriate) and any disbursements related to that stage (or stages) are not recoverable unless the enforcement agent has, before proceeding to remove goods which have been taken into control, given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.

 

 

Taking the above regulation into consideration, it is clear that the governments view is that the Compliance Fee of £75 should remain payable.

 

Should the account be returned to the creditor/local authority?

 

With the introduction of the Taking Control of Goods Regulations 2013, and in particular, the emphasis given to 'vulnerable' debtors, all enforcement companies have introduced in-house 'Welfare Departments' (or similar names).

 

Accounts that are considered appropriate to be administered by the 'Welfare Dept' will not not be assigned to an individual enforcement agent and instead, will be managed in house and a affordable payment arrangement will be set up.

[Coughdrop]

It's an interesting topic, and one I know to be close to your heart.

 

I suspect I may be one of the 'regular forum posters' to whom you refer, but if so, you're mistaken in my case at least. My understanding, as stated clearly in the case of Jaason99 over the past few days, is that legally the council have no obligation whatsoever to recall any account, nor the enforcement company to remove any fees, if neither has done anything incorrect.

 

That said, if a debtor is too ill to be able to manage their own affairs, or possibly even to be able to open the post (as in the case of Jason99), whilst legally neither the council, nor the enforcement company had acted incorrectly in any way - they are not mindreaders, and have no way of distinguishing between someone too ill or vulnerable to be able to manage things, nor can the debtor cannot help being ill or vulnerable, and it is no more their fault than the council's or enforcement company's things have got to that stage.

 

In these exceptional cases, I do feel that whilst there is clearly no legal requirement for an account to be recalled or fees removed, there is definitely a moral obligation to remove them (assuming people implementing the fees, or advising they should be paid have morals) . I would be very surprised if it was the government's intent, when the 'new' regulations were brought in, for people such as Jason99 to be charged enforcement fees when they were in no way trying to avoid any obligation to pay their way; they were simply too ill and too vulnerable at the time to deal with anything at all.

 

I believe it is standard practice among the financial sector to treat vulnerable people with compassion, look at their circumstances, and often write off sums which have been charged inapropriately, even though there is no legal requirement to do so. Are you suggesting there should be an exception to this for enforcement?

 

In the case I've mentioned here, the account had been assigned for enforcement and fees charged, so they would have to be removed, even if collection of the arrears remained in-house. I have not seen any posts on any forum or Social Networking site where accounts were passed directly from the council to the Welfare Department of an enforcement company, without first being assigned to an individual enforcement agent, at which stage the Compliance Fee becomes payable. I'm not saying there are no such cases, just that I have not seen any. Do we see the cases which slip through the net on these sites, or is it more the norm for cases to be assigned to an agent, then later referred to the Welfare Department?

[Bailiff Advice]

Whenever the government introduce a Statutory Instrument (in this particular case; The Taking Control of Goods (Fees) Regulations 2014) they must also provide an Explanatory Memorandum. A great deal of the complexity of the statutory instrument is effectively taken out of it because it’s put into much simpler language.

 

There are rules relating to these Explanatory Memorandums. They must cover a description of the subject, describe the procedure that should be followed, how the regulation came about, and the legal basis on which it's being made.

 

In relation to the position of 'vulnerable debtors' and enforcement agent fees, the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations 2014 states the following:

 

 

Item 3.5

 

This instrument provides vulnerable debtors with the opportunity to seek further advice, in line with responses to the “Transforming Bailiff Action” consultation,

before incurring the enforcement fee.

 

Responses suggested that a vulnerable debtor may be incapable of understanding or engaging with the process in the early stages and so should be given the chance to seek advice when the enforcement agent is on their doorstep and has identified them as vulnerable.

 

While the enforcement agent will not be prevented from taking control of goods (thereby fulfilling obligations to the creditor), failure to provide a debtor with this opportunity before they proceed to actually remove the goods will mean they risk

their enforcement stage fee.

This will provide an incentive for the enforcement agent to ensure a vulnerable debtor is able to get advice; will allow the debtor to address their debt and protect the creditor’s right to recover what is owed to them.

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

[Bailiff Advice]

It's an interesting topic, and one I know to be close to your heart.

 

I suspect I may be one of the 'regular forum posters' to whom you refer, but if so, you're mistaken in my case at least. My understanding, as stated clearly in the case of Jaason99 over the past few days, is that legally the council have no obligation whatsoever to recall any account, nor the enforcement company to remove any fees, if neither has done anything incorrect.

 

You are correct in that this is a subject that I am very passionate about. But can I just make it clear CD that this thread is one that I intended posting a long time ago and is certainly not aimed at you at all.

 

It is also applicable to all 'vulnerable' debtors (who I consider, should be treated the same).

[colin11]

The problem i see when people ask for advice on most Forum/Facebook groups, Is the automatic "are you vulnerable" question

 

People are advised that just about anything can make you vulnerable, Ingrowing toenail, Quick send the vulnerable letters to the council and the Bailiffs

 

The worse i have seen is people being advised to go to the doctors and tell him they are depressed, So they can get a prescription for antidepressants, And so vulnerable,

 

I think a definitive list of what actually makes a debtor vulnerable would be helpful, I know every case is different, But i think people need to know the facts anyway

[Coughdrop]

You are correct in that this is a subject that I am very passionate about. But can I just make it clear CD that this thread is one that I intended posting a long time ago and is certainly not aimed at you at all.

 

It is also applicable to all 'vulnerable' debtors (who I consider, should be treated the same).

 

That's fine, I know it's an area you return to regularly and one which always merits revisiting. I think my post remains valid though, as while I used one recent example, that example raised questions given your post above. Using the example of Jason99, do you believe it right he should be charged any fees at all, regardless of what the legislation states? It would be interesting to have answers to the other questions I posed as well, to know your views on those areas.

 

I don't agree that all vulnerabilities should be treated the same either. I think there is a huge difference between someone who has a long term issue and someone who may have had an experience which makes them temporarily vulnerable. Obviously short term action may be the same, but longer term action would (and in my opinion should) differ.

 

 

The problem i see when people ask for advice on most Forum/Facebook groups, Is the automatic "are you vulnerable" question

 

People are advised that just about anything can make you vulnerable, Ingrowing toenail, Quick send the vulnerable letters to the council and the Bailiffs

 

The worse i have seen is people being advised to go to the doctors and tell him they are depressed, So they can get a prescription for antidepressants, And so vulnerable,

 

I think a definitive list of what actually makes a debtor vulnerable would be helpful, I know every case is different, But i think people need to know the facts anyway

 

I agree entirely about the overuse of the term vulnerable, and the fact that it is often looked to as an excuse to avoid payment, rather than a genuine vulnerability. This is why evidencing vulnerability is so important.

 

I believe a list was avoided as it is almost impossible to produce a definitive one. However, there are some common issues which may lead to someone being vulnerable - I think some were defined in the old National Standards - and these could easily be listed, noting there will always be other issues as well.

 

People trying to use vulnerability as a means to avoid paying have done a huge disservice to genuine cases.

[Peterbard]

Whenever the government introduce a Statutory Instrument (in this particular case; The Taking Control of Goods (Fees) Regulations 2014) they must also provide an Explanatory Memorandum. A great deal of the complexity of the statutory instrument is effectively taken out of it because it’s put into much simpler language.

 

There are rules relating to these Explanatory Memorandums. They must cover a description of the subject, describe the procedure that should be followed, how the regulation came about, and the legal basis on which it's being made.

 

In relation to the position of 'vulnerable debtors' and enforcement agent fees, the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations 2014 states the following:

 

 

Item 3.5

 

This instrument provides vulnerable debtors with the opportunity to seek further advice, in line with responses to the “Transforming Bailiff Action” consultation,

before incurring the enforcement fee.

 

Responses suggested that a vulnerable debtor may be incapable of understanding or engaging with the process in the early stages and so should be given the chance to seek advice when the enforcement agent is on their doorstep and has identified them as vulnerable.

 

While the enforcement agent will not be prevented from taking control of goods (thereby fulfilling obligations to the creditor), failure to provide a debtor with this opportunity before they proceed to actually remove the goods will mean they risk

their enforcement stage fee.

This will provide an incentive for the enforcement agent to ensure a vulnerable debtor is able to get advice; will allow the debtor to address their debt and protect the creditor’s right to recover what is owed to them.

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

 

Yes i think I mentioned this on another thread earlier, perhaps i should have provided the background info as you have .

 

My view on this, is that vulnerability in enforcment situations always has a psychological element in the final analysis.

 

 

Vulnerability is about the debtor not having the ability to interact with EAs and/or not being able to handle their finances because of the additional trauma of enforcement action..

 

Most people will experience a heightened level of discomfort and anxiety when dealing with a bailiff, this to a degree is what they depend on.

The majority of us will (to an extent) take this in our stride, although uncomfortable it will be bearable, we will still be able to function.

 

Those however with a pre-existing problem of mental illness will have their tolerance pushed over the limit and the result is mental or physiological breakdown.

 

Other factors, of a physical nature can also raise anxiety in peoples everyday life, they are itemised in the regs and guidance: pregnancy, recent bereavement disability etc.

 

What is not made clear, is that it is not these condition in themselves which render the individual "vulnerable" it is the additional pressure being applied to an already pressurised individual.

 

When considering if an individual is vulnerable or not, the debtor must be assessed but not on how he is in normal life but how he would be if the additional pressure of a bailiff enforcment was applied.

 

Some would say a difficult if not impossible task.

[Coughdrop]

Yes i think I mentioned this on another thread earlier, perhaps i should have provided the background info as you have .

 

My view on this, is that vulnerability in enforcment situations always has a psychological element in the final analysis.

 

 

Vulnerability is about the debtor not having the ability to interact with EAs and/or not being able to handle their finances because of the additional trauma of enforcement action..

 

Most people will experience a heightened level of discomfort and anxiety when dealing with a bailiff, this to a degree is what they depend on.

The majority of us will (to an extent) take this in our stride, although uncomfortable it will be bearable, we will still be able to function.

 

Those however with a pre-existing problem of mental illness will have their tolerance pushed over the limit and the result is mental or physiological breakdown.

 

Other factors, of a physical nature can also raise anxiety in peoples everyday life, they are itemised in the regs and guidance: pregnancy, recent bereavement disability etc.

 

What is not made clear, is that it is not these condition in themselves which render the individual "vulnerable" it is the additional pressure being applied to an already pressurised individual.

 

When considering if an individual is vulnerable or not, the debtor must be assessed but not on how he is in normal life but how he would be if the additional pressure of a bailiff enforcment was applied.

 

Some would say a difficult if not impossible task.

 

I'm not going to get into lengthy debate about this area, but I can't agree with the part highlighted above. Sections 70-78 of the National Standards (linked below) clearly identify pre-existing conditions / groups of people where vulnerabilities might be found. One of numerous common mistakes is to think that because someone appears in one of these categories, they are automatically deemed vulnerable; that is, of course, rubbish.

 

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353396/taking-control-of-goods-national-standards.pdf

[Peterbard]

I. One of numerous common mistakes is to think that because someone appears in one of these categories, they are automatically deemed vulnerable; that is, of course, rubbish.

 

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353396/taking-control-of-goods-national-standards.pdf

 

 

Indeed it is that is why i did not say it, in fact quite the opposite.

 

The reason the groups are mentioned is because they may contain people who are in an at risk group because of ongoing situations prior to the bailiff visits.

 

As fr not arguing , it would be as well if you did decide to reconsider if you read the post yourself before commenting.

[Peterbard]

The point which i thought was made is that , although someone who seems to be coping uite well with a stressful situation, may still be vulnerable when subject to the additional stress of enforcment, understanding this properly clarifies everything else regarding the subject.

 

For instance it means that enforcment may still be able to continue as long as the method is adjusted to cause less additional stress to the debtor. It also illustrates that vulnerability is not abut being physically disabled it is abut how the individuals copes with it.

[colin11]

One problem i have noticed is that a lot of debtors try to take a minor Vulnerability, And use it to try to avoid debts

 

They think they are immune to bailiff actions because of a minor ailment

[Peterbard]

One problem i have noticed is that a lot of debtors try to take a minor Vulnerability, And use it to try to avoid debts

 

They think they are immune to bailiff actions because of a minor ailment

 

This is the point entirely. It has become a get out of jail free card in some advisors minds.

[Peterbard]

Anyway as usual with vulnerability threads this has gone off topic. The main point is tht , all fees will not (necessarily)be removed if an account is returned following a request for the authority due to a vulnerability claim

[colin11]

From what i have seen, If a council tax debt has been recalled to the council due to vulnerability, Then the council do not include the bailiff fees when setting up a repayment plan

 

That would leave the bailiff to chase for the fees alone, Unless the debtor has a car, There is not much the bailiffs can do about it

[Coughdrop]

Indeed it is that is why i did not say it

 

No, you didn't, I thought it worth mentioning the point.

 

The reason the groups are mentioned is because they may contain people who are in an at risk group because of ongoing situations prior to the bailiff visits so they have to be assessed as they are, because 'as they are' might mean they are vulnerable.

 

As fr not arguing , it would be as well if you did decide to reconsider if you read the post yourself before commenting.

 

DB, are you incapable of posting without being abusive? You appear to have adopted this 'attack the person' style for anyone on here who dares even to question you. I did read the post - it appears it was actually you who failed to understand things, but hey ho!

 

The point which i thought was made is that , although someone who seems to be coping uite well with a stressful situation, may still be vulnerable when subject to the additional stress of enforcment, understanding this properly clarifies everything else regarding the subject.

 

Well of course they'd still be vulnerable. Subjecting them to enforcement action is unlikely to be a panacea for vulnerability!

 

For instance it means that enforcment may still be able to continue as long as the method is adjusted to cause less additional stress to the debtor. It also illustrates that vulnerability is not abut being physically disabled it is abut how the individuals copes with it.

 

Partly correct - well done, though I think you mean 'may not' rather than 'is not.' Vulnerability can also be about being ill, bereaved or various other scenarios, which is why they do not attempt to define the term. Indeed I asked a few questions in the original post of Bailiff Advice, but note there have been no replies as yet, I'm sure she will be online later today or tomorrow.

 

One problem i have noticed is that a lot of debtors try to take a minor Vulnerability, And use it to try to avoid debts

 

They think they are immune to bailiff actions because of a minor ailment

 

Yes, they do, you're spot on. That's why I mentioned earlier the notion that someone who appears in one of the categories in the National Standards should automatically be deemed vulnerable is, of course, rubbish.

[Coughdrop]

Anyway as usual with vulnerability threads this has gone off topic. The main point is tht , all fees will not (necessarily)be removed if an account is returned following a request for the authority due to a vulnerability claim

 

The post was actually posed as a question, to which the answer is simply no, each case must be judged on its own merits. It seems the thread has provoked little discussion, and changed absolutely nobody's understanding of the issue, possibly because it's been done to death.

 

From what i have seen, If a council tax debt has been recalled to the council due to vulnerability, Then the council do not include the bailiff fees when setting up a repayment plan

 

That would leave the bailiff to chase for the fees alone, Unless the debtor has a car, There is not much the bailiffs can do about it

 

If the council recall it, there are no fees to collect. There can be an issue (digressing for a moment), over debtors who pay the council directly.

[Peterbard]

How do you do that multi posting thing

[Peterbard]

From what i have seen, If a council tax debt has been recalled to the council due to vulnerability, Then the council do not include the bailiff fees when setting up a repayment plan

 

That would leave the bailiff to chase for the fees alone, Unless the debtor has a car, There is not much the bailiffs can do about it

 

No when the warrant is recalled the bailiff cannot pursue any debt as there power to co so dies. However authorities do have to reimburse bailiffs for a compliance fee to cover work done in processing the warrant, in a case where it has been returned at their request, or due to a fault of the authority. As you would expect bailiffs would be very peaved indeed if hat fee was not[paid when they had performed the service successfully.

So this charge will be settled before the debt is returned. if the council pay it , it will go on the bill often as not, ther is nothing to stip them so doing, and after all they would have taken the debt back which is of far more value to the debtor.(usually)

[Bailiff Advice]

Anyway as usual with vulnerability threads this has gone off topic. The main point is tht , all fees will not (necessarily)be removed if an account is returned following a request for the authority due to a vulnerability claim

 

This is one of 4 threads that I drafted quite some time ago, but have withheld posting for one reason or another. In the case of this particular thread, the reason for not posting was because any thread that includes 'vulnerability' has a tendency to go 'off topic'. Hopefully, this may be avoided.

 

The point that I was trying to highlight in this thread is Regulations 12 of the TCoG (Fees) regs (which is rarely ever mentioned on the forum).

 

If an enforcement company voluntarily return an account, then all enforcement agent fees should be removed.

 

If however, a local authority recall the account from the enforcement company, then according to Item 11 of the Taking Control of Goods: National Standards 2014, the creditor should pay the enforcement company for any enforcement fees that they have incurred.

 

Item 11 states as follows:

 

Creditors agreeing the suspension of a warrant or making direct payment arrangements with debtors must give appropriate notification to and should pay appropriate fees due to the enforcement agent for the work they have undertaken.

 

 

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353396/taking-control-of-goods-national-standards.pdf

[Peterbard]

This is one of 4 threads that I drafted quite some time ago, but have withheld posting for one reason or another. In the case of this particular thread, the reason for not posting was because any thread that includes 'vulnerability' has a tendency to go 'off topic'.

 

The point that I was trying to highlight in this thread is Regulations 12 of the TCoG (Fees) regs (which is rarely ever mentioned on the forum).

 

If an enforcement company voluntarily return an account, then all enforcement agent fees should be removed.

 

If however, a local authority recall the account from the enforcement company, then according to the Taking Control of Goods: National Standards 2014, the creditor should pay the enforcement company for any enforcement fees that they have incurred.

 

I think that because there will be an accommodation in the contract, it seems to be inequitable that the EA company should suffer for something which is not related to performance or fault.

[Bailiff Advice]

It is interesting to read the view of the Local Government Ombudsman.

 

The following is a copy of a post that I made on the LGO thread about two week ago. It concerns Newcastle-under-Lyme-District Council. Personally,

I consider that this report is one of the most important ones

since the Taking Control of Goods Regulations was introduced in April 2014.

 

Almost as soon as the regulations were introduced, the internet became swamped with endless sites advising debtors of ways in which to 'avoid' paying a bailiff. The most common advice was to inform debtors that if they claimed that they were from a 'vulnerable household' this would ensure that the debt would be recalled by the council and bailiff fees would be cancelled.

 

With almost all enforcement companies having dedicated 'Welfare Departments' it is now more common than ever for genuine 'vulnerable' cases to be retained by the enforcement company and manageable payment arrangements set up.

 

 

Analysis:

 

The debtor in this case (Ms X) had a representative assisting her. She had two Liability Orders (2011/2012 and 2013/2014), In the case of the 2013/4 Liability Order, the council made an attachment of earning order to recover this debt. The AOE failed in August 2014 as Ms x moved jobs. She failed to advise the council of her new employer. The account was therefore referred to bailiffs.

 

Although the debtor was employed, she nonetheless had a history of mental health problems and a letter was obtained from her GP confirming that she suffered with stress, anxiety and depression and that this could be triggered by financial concerns. The representative complained to the Ombudsman because the local authority would not agree to recall the debt from the bailiffs.

 

Paragraph 12:

 

The council would only agree to recall the 2013/2014 debt from the bailiffs provided that Ms X brought the current council tax year up to date. Ms X’s representative felt this was not achievable.

 

Ms x was hospitalised with a suspected heart attack in February 2015. The bailiff placed a hold on the account for 28 days. After 28 days and having received evidence of Ms B’s hospitalisation at the end of February, the bailiff discussed the case with the Council.

 

Paragraph 13:

 

On 30 March the bailiff agreed to reduce the instalments they had requested in line with Ms B’s request. The bailiff records indicate that some, but not all payments were made. This prompted further enforcement contacts. The Council confirmed that Ms X was now paying bailiffs £5 per week for the 2013/14 debt. The bailiff records indicate this arrangement began in July 2015

 

Paragraph 26:

 

The bailiff records indicate that it took account of Ms X’s health and the information provided. Although I recognise that Ms X and her representative wanted the Council to recall Ms X’s account from bailiffs, this was a decision for the Council. I do not consider the Council was at fault when it decided the account should not be recalled. I note the Council, via the bailiffs agreed a payment plan.

 

http://www.lgo.org.uk/decisions/bene...tax/14-017-488

[Peterbard]

Yesss I remember reading this n thinking perhaps the increase in E A based vulnerability departments may be an excellent way of managing the problem.

 

It is difficult to differentiate between genuinely vulnerability and those who just want the debt referring back because the authority or the creditor is easier to "manage" in order to evade payment further.

 

I would estimate that the latter would represent over 80% of vulnerable claimants probably more. An in house system would also weed these out.

[Coughdrop]

YPu must excuse CD or whoever it is they are not themselves at them moment.

 

It's very hard to give credibility to someone who has nothing better to do than be abusive.

 

I seem to remember that last week you were claiming enforcement fees were payable by the debtor if the account was recalled by the council, though I may be mistaken.

 

I'm not sure there is anything new being added here which has not been mentioned previously, and which is not common knowledge.

 

To add some point to the thread, Dodgeball, to multiquote, simply click the inverted commas at the bottom right of each post you wish to quote. It will let you multiquote up to three posts at once. Once selected just click 'Reply to Thread'

 

If you want to split a quotation into pieces, type where you want the quote to end, and copy and paste the bit from the start of the quotation where you want it to restart - for this post I'd have copied

, so you get:

 

My name is Dodgeball.

 

by typing:

 

My name is Dodgeball. [ / Q U O T E]

 

I've added gaps to stop it showing as a quotation again.

 

I hope that helps.

[Peterbard]

Thanks I will give it a try.