When a new EA takes over.

[Peterbard]

Hi PT

I could have rea further but it would make it would make no difference becasue the beging of the sectin says.

 

11.—(1) This regulation applies for the purpose of calculating the fees and disbursements payable to the enforcement agent in accordance with regulations 4, 8, 9 and 10 in a case where—

 

(a)the enforcement agent receives instructions to use the procedure under Schedule 12 in relation to the same debtor but in respect of more than one enforcement power; and

 

(b)those enforcement powers can reasonably be exercised at the same time.

 

The purpose of this section is to restrict the bailff from charging multiple enforcement fees at the same visit.

 

The situation we are refering to here is when the enforcement are on different occasions and under different powers.

[Coughdrop]

I dont know if PT was refering to me. #Anyway i do not know how much simpler i can put it to you.

 

You obviously think that any subsequent bailiff firms are not entitled to their fees because the earlier bailiff either had or where unable to collect theirs.

 

I think you've raised a very interesting point, to be honest. I spent quite a lot of time last night reading and re-reading legislation to try to find something which would shed a different light on this, and was unable to find anything of great substance.

 

This is a bit of what I got, though it sheds little light on things. There is more potentially, depending on clarification of the question at the end of this post.

 

I don't see how an EA can apportion funds if payment is made in a way other than cash. The payment would go to the company, so surely they would apportion funds? This may be relevant to future discussion.

 

I think there is no doubt that if the warrant is assigned to another company, then fees would, and should be payable. If they change the EA assigned to the case because of (or using as an excuse) a missed payment within a company, then this is where I question things.

 

Are you suggesting that if a company, say Equita, chooses to assign three different EA's to oversee one account at different times, due to missed payments, the debt would return to the start of the Compliance Stage or Enforcement Stage each time the EA administering the account changes? Or are you saying this would only happen where there is a change of Enforcement Company, say from Equita to Marstons?

 

An interesting issue which I'm glad to see raised.

[Peterbard]

OK then I will answer as best i can.

 

You are correct in that it is beyond question that if the enforcment powerr is conferred to another EA they are entitled to charge for their fees, irrespective of what has been charged before.

Section 52 of the council tax regs. says that enforcement power can be used in any order and/or in any frequency.

 

There are however several questions which are raised when the same power is issued to the same destination.

 

The intention of the TCE was to insure that only one set of fees woul be mde by the individual company who is enforcing, of this there is also no doubt(although it is not prescribed within the act).

However as we know the enforcment power is not addressed to the company, it is addressed to the agent. so it would seem that a power even though ending up at the same agency can be enforced by another agent as a new action.

 

This may be yet mother of those unintended consequences which we keep bumping into. I think the above will answer your points relating to baiiffs assigning colleagues to do provide independent enforcment, they cannot the enforcment power is issued to one person, although he may be get others to help, the power and it path thought h TCE will have to be the same.

[Coughdrop]

As I see things, if the debt goes to another company, I believe you are correct. However, and this is critical here interms of reality, whilst this may happen with say two different companies, it is highly unlikely in reality to happen more than twice, though theoretically, it could. The council would look to use an AOE or some other method of enforcement.

 

So, we are left with the theoretical.

 

I am unclear what happens to fees collected if the debtor defaults and the EA hands the warrant back. I can see nothing to say they cannot take their £75 even if enforcement goes to another agent in the same company.

 

Is the power given to the enforcement company, or the enforcement agent? If the company, multiple fees within the same company cannot happen, in my opinion, as the power does not end when passed from one agent to another, it transfers to the new agent.

 

There is an assumption though that one EA will oversee an account. In the case highlighted here, three different EA's have overseen one account, twice after the debtor defaulting on a payment plan. The legislation seems silent on this.

 

If the account goes to another agent, is this under a new enforcement power derived from the same warrant? If so, the original EA failed to collect, so should ALL fees be returned? Again legislation does not mention this possiblilty.

 

If the debt goes to another company, what happens to fees paid already? I think they stand up to the stage of recovery they are at (so if the £75 has been taken, and £35 of the £235, I think the EA would retain all of this). The power would then die when passed back to the council, and the debtor would incur a second compliance fee and enforcement fee if a new EA made a visit.

 

References to a debtor only incurring one set of fees appear to be one set of fees per EA, or possibly one set of fees per enforcement company, depending whether the warrant gives power to the company, or the individual EA. The legislation suggests it is the individual EA.

 

Nothing I can see in any legislation, or the CPR's states otherwise. The assumption by government that one EA will retain an account for as long as it is within one company appears a false assumption, though (without checking back to last night / early this morning) I think the legislation talks about one EA overseeing the account, so technically perhaps, more than one EA could actually collect the account.

 

I need to re-read again to clarify in my own mind what I read last night, but in fear of being banned, am putting everything down so people can discuss or dismiss as necessary.

 

The discussion does then take us into the issue of proceeds, which I won't touch on here as it is a discussion in itself, and one on which I 'think' DB and I agree - though who knows now?

[Coughdrop]

OK then I will answer as best i can.

 

You are correct in that it is beyond question that if the enforcment powerr is conferred to another EA they are entitled to charge for their fees, irrespective of what has been charged before.

Section 52 of the council tax regs. says that enforcement power can be used in any order and/or in any frequency.

 

There are however several questions which are raised when the same power is issued to the same destination.

 

The intention of the TCE was to insure that only one set of fees woul be mde by the individual company who is enforcing, of this there is also no doubt(although it is not prescribed within the act).

However as we know the enforcment power is not addressed to the company, it is addressed to the agent. so it would seem that a power even though ending up at the same agency can be enforced by another agent as a new action.

 

This may be yet mother of those unintended consequences which we keep bumping into. I think the above will answer your points relating to baiiffs assigning colleagues to do provide independent enforcment, they cannot the enforcment power is issued to one person, although he may be get others to help, the power and it path thought h TCE will have to be the same.

 

As you posted whilst I was typing, there can be no question of me posting others' thoughts I hope.

 

We seem to have drawn pretty much the same conclusion, that the intent was for one EA to oversee an account.

 

I've tried to go into a bit more detail, which I suspect echoes your train of thought on this. It raises some uncomfortable issues for debtors and needs clarification if it is found to be happening at all.

 

Legislation talks only of EA's not Enforcement Companies (EC's). If a warrant is given to an EA, then when EA1 hands it back, the power dies, and EA2 (working for the same EC) starts afresh. This could theoretically continue ad infinitum.

 

At this stage reality needs separating from theory, as it wouldn't go on ad infinitum - the account would be handed back, the enforcement power dies, and the council would look at an alternative method of enforcement, though it is far from unknown for them to try two EC's before trying another method, despite legislation stating EA's should be a last resort. They are a first resort, not a last one.

 

There's a huge issue over the way the Compliance Stage and Enforcement Stages are working in reality as well, in that debtors are finding it impossible to get affordable plans. This needs addressing as the regs are failing here.

[Coughdrop]

Another thing I meant to mention, but forgot. You stated previously the EA apportions the monies. This cannot be the case as many people pay by card to the enforcement company.

 

Why is this significant? Because in the case here, the EC would hold all the money, so presumably would apportion the monies on collection of the debt, or if the warrant is handed back, all monies would be handed back to the council as they had failed to collect the debt and the enforcement power has died, leaving all fees available to another company (or indeed another agent within the same company if the one who collects the debt gets the fees).

 

If the above happened, the regs would make more sense.

 

Just a further thought I forgot to mention in full, though mentioned in passing in my first post of today.

[honeybee13]

You people have got short memories, I asked you to stop the sideswipes.

 

Off topic posts removed.

 

HB

[lookinforinfo]

I am sorry DOdgeball but I cannot get past the notion that the £75 fee is only ever levied once. And especially when the L/O is retained within the same Enforcement company. In support of my last statement I have never once seen a member come on this forum (or any other forum come to that) and complain that they have been charged twice for the enforcement fee. As I said in my previous post that were it possible , EAs would be constantly changing which debtor they dealt with in order to increase their fees by £75 each time it happened. I have seen no sign of that and I am sure that were it possible, the more venal among the EAs would have tried it.

 

I am trying to get my head round the second situation where a second Enforcement company becomes involved. My instinct is in that situation the account is returned to the Council along with any fees paid so that the second company starts all over again-and presumably giving the debtor the statutory 7 days clear notice?

Alternatively, if the £75 fee is not returned by the first company, then the new company is made aware that the compliance stage Is already in force and they are to proceed straight away with enforcement thus forgoing the initial fee since they did not carry out that action.

 

To clear up a matter that Coughdrop was musing about, ie about who administers the compliance fee, it will surely be the Enforcement company as it is they who will receive the money whether it be from the bailiff, the debtor or the Council. I would imagine that would be the position as Grumpy stated on another thread that most bailiffs are salaried. (It is possible that his statement might lead to another thread as to whether it is the EA or the company who are behind overcharging (such as adding the £110 sale fee before any goods are under control).

[Peterbard]

I think most of this is just trying to digest what i said, although i missed some post apparently.

Yes EAs apportion proceeds, its in section 13 of the regs. If the account is haced back the proceeds received would be apportion as said in this section?

 

It is a long standing point that strictly speaking if an account is paid to the enforcement agency is questionable as it should be payed to the enforcment agent, this is because of the fact that the EA receives the power to handle the account. The reason for this is that the TCE does not permit licensing of an agency, just a person.

 

Many think that this is also an unexpected consequence of the way the act was drafted others say that it is because of a "to literal reading" of the sections, and enforcment agent shod be simply read as enforcment agency in these cases. You pays your money.

[Peterbard]

Legislation talks only of EA's not Enforcement Companies (EC's). If a warrant is given to an EA, then when EA1 hands it back, the power dies, and EA2 (working for the same EC) starts afresh. This could theoretically continue ad infinitum.

 

This is an issue but plainly the regulation say that they can. However is does not stop the authority adding a clause to their contract wich says they can not do so.

 

The regulations say that fees may be recovered mot must. According to JK this means that fees can either be charged or remitted no middle ground. the reasons for the last statement is because any ability to vary fees would inevitably result in a price war when it came to contract time.

[Coughdrop]

I think most of this is just trying to digest what i said, although i missed some post apparently.

Yes EAs apportion proceeds, its in section 13 of the regs. If the account is haced back the proceeds received would be apportion as said in this section?

 

It is a long standing point that strictly speaking if an account is paid to the enforcement agency is questionable as it should be payed to the enforcment agent, this is because of the fact that the EA receives the power to handle the account. The reason for this is that the TCE does not permit licensing of an agency, just a person.

 

Many think that this is also an unexpected consequence of the way the act was drafted others say that it is because of a "to literal reading" of the sections, and enforcment agent shod be simply read as enforcment agency in these cases. You pays your money.

 

I'm not sure you've missed anything relevant to the discussion, unless I missed it too - quite possible as I've not been on the computer for an hour or so.

 

It's difficult to confuse the meaning of 'Enforcement Agent' as it is defined very clearly in the legislation, Sch.12 p2(1) http://www.legislation.gov.uk/ukpga/2007/15/schedule/12

 

I'm aware Sch .12 para 50(6) talks about the EA apportioning goods. Section 13 does not talk about this:

http://www.legislation.gov.uk/uksi/2014/1/regulation/13/made

 

I remain to be convinced that the EA apportions funds in reality, not the EC (Enforcement Company).

 

There remains an issue over the power being handled by more than one EA within an EC, as in this case where three EA's from one EC have handled the account, and the fees chargeable.

 

I don't believe there is any doubt that if a new EC takes on the account, it is an entirely new enforcement power, not being used alongside any other, so the fees can be charged again. This is where post 35 potentially becomes significant.

 

As DB states, there is a question of too literal an interpretation of the legislation, but at the end of the day, it says what it says, and sometimes it has to be for a court to interpret. The vast majority of issues are now clear to all.

[Peterbard]

At this stage reality needs separating from theory, as it wouldn't go on ad infinitum - the account would be handed back, the enforcement power dies, and the council would look at an alternative method of enforcement, though it is far from unknown for them to try two EC's before trying another method, despite legislation stating EA's should be a last resort. They are a first resort, not a last one.

 

It has been mooted that the increasing tendency for authorities to re issue warrants is in no small part to internet advice that the debtor should just sit out enforcement until the account goes back

 

The idea is the shock value of an agent re enforcing when the debtor has thought they had seen the last of the debt was a good enforcment tool. Of course re issuing the debt to a bailiff costs the authority next to nothing.

[Peterbard]

Section 13 of the fes regs prescribes howthe bilfif apportions proceeds.

 

(2) Where the goods are sold or disposed of at public auction (other than by internet auction), the proceeds must be applied first in payment of the auctioneer’s fees calculated in accordance with regulation 9(2) or (3) as appropriate.

 

(3) Following the payment at paragraph (2), the enforcement agent may then recover the compliance fee.

 

(4) Subject to paragraph (5), following any payment due by virtue of paragraphs (2) and (3), the proceeds must be applied pro rata in payment of—

 

(a)the sum to be recovered, and

 

(b)any remaining amounts recoverable in respect of fees and disbursements payable to the enforcement agent in accordance with these Regulations.

 

(5) Where the same legal person is both the creditor and the enforcement agent, paragraph (4) does not apply and the proceeds must be applied in payment of the amount referred to in paragraph (4)(b) before payment of the amount at paragraph (4)(a).

 

(6) In paragraphs (4) and (5), references to the proceeds are to the proceeds after deduction of the sums, if any, to which paragraphs (2) and (3) relate.

 

Section 50(6) is about jointly owned goods and how there proceeds after sale are divided.

[Coughdrop]

At this stage reality needs separating from theory, as it wouldn't go on ad infinitum - the account would be handed back, the enforcement power dies, and the council would look at an alternative method of enforcement, though it is far from unknown for them to try two EC's before trying another method, despite legislation stating EA's should be a last resort. They are a first resort, not a last one.

 

It has been mooted that the increasing tendency for authorities to re issue warrants is in no small part to internet advice that the debtor should just sit out enforcement until the account goes back

 

The idea is the shock value of an agent re enforcing when the debtor has thought they had seen the last of the debt was a good enforcment tool. Of course re issuing the debt to a bailiff costs the authority next to nothing.

 

I'm sure I recognise that first paragraph! lol

 

I imagine there may be a tendency to reissue warrants as a result of solid internet posts suggesting the debtor sits things out in certain circumstances. There is nothing wrong with them sitting it out twice!

 

As regards, "Of course re issuing the debt to a bailiff costs the authority next to nothing" Herein lies the reason bailiffs are used as a first resort, rather than a last resort as intended.

 

If bailiffs were to do as they are supposed to during both compliance and enforcement stages, then things 'might' (might not) be less contentious. They don't do as they should though, so trying to save debtors money by sitting it out, as long as they are fully aware of all the issues around doing so is fair play. Even if it were not 'fair play', it is legal, so challenge fees and if possible, save the debtor money.

 

As I've said several times, CAG started with the bank charges issue and trying to save debtors money, they do the same with DCA's, with parking, with everything. Challenging bailiffs and trying to save debtors money when they face enforcement is only a natural extension of this.

 

It all makes for interesting discussion anyway, though I don't know that any definitive conclusion has (yet) been reached.

[Coughdrop]

Section 13 of the fes regs prescribes howthe bilfif apportions proceeds.

 

(2) Where the goods are sold or disposed of at public auction (other than by internet auction), the proceeds must be applied first in payment of the auctioneer’s fees calculated in accordance with regulation 9(2) or (3) as appropriate.

 

(3) Following the payment at paragraph (2), the enforcement agent may then recover the compliance fee.

 

(4) Subject to paragraph (5), following any payment due by virtue of paragraphs (2) and (3), the proceeds must be applied pro rata in payment of—

 

(a)the sum to be recovered, and

 

(b)any remaining amounts recoverable in respect of fees and disbursements payable to the enforcement agent in accordance with these Regulations.

 

(5) Where the same legal person is both the creditor and the enforcement agent, paragraph (4) does not apply and the proceeds must be applied in payment of the amount referred to in paragraph (4)(b) before payment of the amount at paragraph (4)(a).

 

(6) In paragraphs (4) and (5), references to the proceeds are to the proceeds after deduction of the sums, if any, to which paragraphs (2) and (3) relate.

 

Section 50(6) is about jointly owned goods and how there proceeds after sale are divided.

 

Yes, I mentioned both of those, and gave the direct links. Where in s.13 does it say the EA apportions things, not the EC?

[brassnecked]

If DB is correct, then the debtor becomes a cash cow.

[Peterbard]

but it is only a problem if the debtor takes on payment plans or makes part payments then defaults.

[Coughdrop]

If DB is correct, then the debtor becomes a cash cow.

 

In theory possibly, in reality they won't (see below)

 

but it is only a problem if the debtor takes on payment plans or makes part payments then defaults.

 

Yes, if they stick to plans, then obviously there should be no problems - that is, of course, assuming they have been able to agree an affordable plan, rather than feeling they have no option but to agree a plan which is not sustainable, due to pressure from the EA.

 

In reality, the debtor won't be a cash cow, as the account is handed back and a different collection method is used, such as an AOE. This is where theory and reality are two completely different things.

 

If they were / are using debtors as cash cows, it is, of course, all the more reason to encourage the debtor to bypass the EA completely, sit things out, and wait for the account to be returned. This then protects the debtor from being used in this way.

 

I still cannot see where s.13 states the EA apportions money paid. I can see where p.50(6) states it, but this is not relevant to goods owned solely by the debtor, as DB rightly states.

[Peterbard]

I am sorry i dot understand the point regarding sectin 13, the apportion of proceeds are clearly done by the EA if not in person his office. I am sure that it will be the responsibility of some number cruncher or accountant in the back office ?

 

Are you saying that this task is undertaken by the creditor ?

[Coughdrop]

I am sorry i dot understand the point regarding sectin 13, the apportion of proceeds are clearly done by the EA if not in person his office. I am sure that it will be the responsibility of some number cruncher or accountant in the back office ?

 

Are you saying that this task is undertaken by the creditor ?

 

No, I'm not saying that at all. My point regarding the potential significance in this was made somewhere earlier in the thread. I think also if the EA does not apportion any money collected, then we should not be stating they do.

[Peterbard]

No, I'm not saying that at all. My point regarding the potential significance in this was made somewhere earlier in the thread. I think also if the EA does not apportion any money collected, then we should not be stating they do.

 

..but since he does it is perfectly OK.

[Peterbard]

For avoidance of doubt(love that phrase)

 

http://www.legislation.gov.uk/uksi/2014/1/made

 

 

©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)

 

This is what the bailiff gets paid to do at sale stage

[Coughdrop]

..but since he does it is perfectly OK.

 

Does he?

 

For avoidance of doubt(love that phrase)

 

http://www.legislation.gov.uk/uksi/2014/1/made

 

 

©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)

 

This is what the bailiff gets paid to do at sale stage

 

First Section 13 was supposed to state the EA is responsible - it didn't. Now we are given a passage from a section headed, 'Stages of enforcement for which fees may be recovered – enforcement other than under High Court writs' which still doesn't say what you claim. It states simply that fees can be recovered for the sale stage.

 

Regulation 14 deals only with the information the EA must provide to the debtor and co-owner. It does not state the EA divides up the money taken in.

 

It almost doesn't matter now we have drifted away from the discussion about accounts changing from one EA to another within the same company, and what happens to fees in that case, but it's interesting that it has not been possible to provide legislation to confirm your asssertions so far.

 

However, we appear to be back more in reality than theory now, so nevermind.

[Peterbard]

Section 4 deals with the activites which the EA can recover feos for performing cd one of them is "application of Proceeds") see the section.

 

©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).

 

 

Section 13 is headed application of proceeds ? I have highlighted the actual words for you in order to not confuse.

[Coughdrop]

Yes, I don't dispute it mentions application of proceeds, I ask where it says the EA is responsible for dividing up money taken. Of course application of proceeds comprises part of the sale stage, and of course s.13 has that heading, but neither states what you are asserting.

 

The issue of bringing the subject up was a genuine compliment to you. You made a post which made me go and look very, very closely at the legislation for the first time in ages, and I'm glad you raised it as it's been really interesting.