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Paying the council direct to avoid fees after the bailiff (EA) has been engaged

This is another theory which is peculiar to this forum and certain freeman of the land internet sites.

Put simply there is no avoiding the EA fees once the account has been passed to the bailiff, unless the enforcement is unsuccessful and is returned, or the account is taken back by the authority due to vulnerability or for some other reason.

Once the account is “under an enforcement power”all fees as prescribed by Schedule 12 of the Tribunals Courts and Enforcement Act 2007 will be due as the sums owed under the liability order and the fees will form one amount under section 50(3) of the act.  It does not matter who the debt is paid to, it may be the EA or the authority, whilst under  the enforcement power all sums are due. Until this  amount is paid IN FULL the enforcement power will remain and the EA will be entitled to continue enforcement. The act is perfectly clear on this.

50(1)Proceeds from the exercise of an enforcement power must be used to pay the amount outstanding.

(2)Proceeds are any of these—

(a)proceeds of sale or disposal of controlled goods;

(b)money taken in exercise of the power, if paragraph 37(1) does not apply to it.

(3)The amount outstanding is the sum of these—

(a)the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);

(b)any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).

This is a resent post made which shows the confusion created over what is a relatively simple matter.

http://www.bailiffhelpforum.co.uk/viewtopic.php?f=3&p=37670#p37670

Postby Mark1960 » 25 May 2015 08:30

The wording of the relevant regulation is vague. It states that a bailiff may recover his fees. It does not say that he may enforce for them. For all we know, he had no powers when he visited you and it was all just a bluff to get his money. A lot of bailiff work revolves around bluffing, in order to apply maximum pressure on the debtor.

It should be obvious that if the bailiff is operating under the “relevant regulation” he would be operating under an enforcement power so he is fully entitled to enforce. There is no “bluffing” here. There is nothing vague about this regulation unless you wish to make it so. Certainty the MOJ the EAs and the creditors as well as the main advice agencies seem to think it is perfectly straight forward.

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55 Comments on "Paying the council direct to avoid fees after the bailiff (EA) has been engaged"

Guest
Free Little Willy
5 years 3 months ago

He’s just told someone they should have paid the council directly instead of Marstons, now he’s advising them to recover whatever it is (not clear whether it’s the payment already made or the fees he’s not paid yet) via the county court. Really? What would you write on your PoC? I paid a debt I owed and now I want my money back?
http://www.bailiffhelpforum.co.uk/viewtopic.php?f=5&t=4630

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Just Sayin'
5 years 5 months ago

The theory about ‘paying direct’ in order to avoid bailiff fees has been dealt another blow this week.

http://www.lgo.org.uk/decisions/bene…her/16-014-707

Fareham Borough Council

The following is a ‘word’ version of the decision:

The complaint

1 The complainant, who I shall call Mr J, says the Council did not take vulnerability not account when refusing to recall his debt from the bailiffs. He would like the Council to take the liability order back from the enforcement agents and refund him the fees he has paid.

What the LGO found

4 Mr J failed to pay his council tax and the Council took legal action against him. The court granted it a liability order, meaning the Council could take further action to recover the debt. As Mr J did not pay the debt or contact it the Council passed the debt to its bailiffs.

5 Mr J contacted the bailiff offering to pay the debt at £10 per month. In response the bailiffs said if Mr J sent proof of the benefits he said he claimed and a statement of his income and expenditure it could accept payments of £20 per month.

6 Mr J then contacted the Council to say he was getting a letter from his GP about his medical condition. He said he felt he was a vulnerable debtor and asked the Council to accept payments of £25 per month. The Council asked Mr J to contact its bailiffs as they were the ones dealing with the debt.

7 A third party contacted the Council, saying they were helping Mr J and would be sending a financial statement and an offer. In view of this the Council asked the bailiffs to hold action for 28 days.

8 After 28 days neither the Council nor the bailiffs had heard any further. So the bailiffs visited Mr J’s home.

9 Mr J said he would call the bailiffs to make an arrangement, but he did not. The third party then contacted the bailiffs with a financial statement and an offer of £40 per month.

10 A week later Mr J contacted the Council, sending a letter from his GP and making an offer of £20 per month. After some discussion Mr J and the Council agreed he would make an initial payment of £40 and then pay £20 per fortnight.

LGO comments

11 The law places some limits if bailiffs find they are trying to recover a debt from a vulnerable person. Bailiffs may not take control of goods, make a controlled goods arrangement, or re-enter premises if the only person on the premises is a vulnerable person. If the debtor is vulnerable the enforcement fee is not recoverable until the bailiff has, before taking goods into control, allowed the debtor an adequate opportunity to get assistance and advice. (Tribunals Court and Enforcement Act 2007, Schedule 12, paragraph 2 and Taking Control of Goods (Fees) Regulations 2014 paragraph 12)

12 Government Guidance says creditors should consider the appropriateness of referring potentially vulnerable debtors to bailiffs; have agreed protocols to cover such cases and be prepared to take control of a case themselves if a debtor is identified as vulnerable. The Guidance says bailiffs should use their discretion appropriately when dealing with a potentially vulnerable debtor. (‘Taking Control of Goods: National Standards’ Ministry of Justice April 2014.)

13 There is no definition of ‘vulnerable’ in the law or Government guidance. The law and guidance does not say debts may not be recovered from vulnerable debtors, but that such cases once identified should be handled with particular care.

14 Mr J says bailiffs do not have discretionary powers to decide whether a person is vulnerable for the purpose of civil enforcement. The law does not specifically say who should make this decision. Paragraph 76 of the Guidance which says “Enforcement agents should be aware that vulnerability may not be immediately obvious” implies bailiffs can make that decision.

15 When Mr J said he was vulnerable the Council and the bailiffs held action to allow Mr J to provide evidence and get help and advice. It was appropriate, when the information the bailiffs wanted had not arrived, for them to continue to take action.

16 The Council consider the information Mr J provided and agreed a repayment arrangement at the level the third party had suggested. There was no reason for the Council to recall the debt from the bailiffs.

17 Mr J says the Council was wrong to pass some of the payments he made direct to it, to the bailiff. He says by paying the Council the council tax outstanding he cleared the debt and so the bailiff fees are not enforceable.

18 The enforcement agent fee regulations say if a payment is made that is less than the total debt and fees outstanding first the Compliance Fee is cleared; the balance is split pro rata between the debt and the fees. Any further payments are split pro rata between the debt and the fees. (Paragraph 13 of The Taking Control of Goods (Fees) Regulations 2014)

19 Mr J was paying the Council directly. The Council was following the law by passing the bailiffs a proportion of these payments to clear the bailiff’s fees. Paying the Council directly does not mean the council tax debt is clear as the Regulations make clear any balance is made up of both the debt and the bailiff fees.

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Smiley Face
5 years 5 months ago

More comments about the LGO decision (paying the council direct) can be found on the Consumer Acton Group forum here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?477356-Local-Government-Ombudsman-(LGO)-decision….Vulnerability-…Paying-the-council-direct…Pro-Rata-distribution-and-more.

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Admin
Schedule One
5 years 4 months ago

How many of these have there been now, he will take no notice.
I have noticed him telling debtors that if debtors are vulnerable they are “immune from fees”. I was going to mention it on here, but he spouts so much bullshit, who has the time?

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Admin
Schedule One
5 years 7 months ago

Posted by Jason today:

“Sheila and the jobless hippies used to quote interpretations of the HMCTS Enforcement Services Contract like sacred writings. When I blew the lid by putting it on the internet, she never mentioned it again”

No because it never happened, I think you still have a case of the bends from your deep sea pearl diving days.

Pote you are an idiot.

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PoteyPottyMouth
5 years 7 months ago

Still waiting on Jason and Pote to post any evidence – their personal opinions are worthless (and wrong)

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Admin
Schedule One
5 years 7 months ago

We have been waiting for nearly four years.

I was disusing that forum the other day. There used to be six or seven giving advice, slowly as the letters kept coming in from debtors, saying Jasons theories didn’t work, they drifted away.

Now really, we just have Jason. Mark has already said that Jason talks bollocks,
i think he just posts because he enjoys an argument and dislikes me and BA.

His name is a joke all over the enforcment and advice industry. Put his name on google and it points at one of the forums where he has made a tool out of himself,or here.
Then he makes himself even more ridiculous, with his Mrs Bouquet-eseque allusions..

In additions things can only get worse. I could care less, as he says. i am just a jobless hippie.

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PoteyPottyMouth
5 years 7 months ago

True to form, I think through lack of understanding Pote again misses the point

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Guest
PoteyPottyMouth
5 years 7 months ago

Pote, take your wife for a walk, it might dawn on you whilst you are away

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Guest
PoteyPottyMouth
5 years 7 months ago

When Cpt Picard, read some of Pote’s comments

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Guest
PoteyPottyMouth
5 years 7 months ago

Something to discuss from the HMCTS Enforcement Services Contract

6.29 The Department will not accept full or part payments on any account where any
warrant or clamping order is with the Contractor.

Should a Defaulter attend a court and offer to pay whilst a warrant or clamping order is outstanding, the court will direct the Defaulter to contact the Contractor concerned.

A process will be agreed by the Department to pay to the Contractor the administrative fee in instances where courts have recalled warrants outside these provisions and the contractor can demonstrate they have undertaken considerable work to execute the warrant before it is recalled. This means all administrative process (i.e.tracing) and one visit.

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PoteyPottyMouth
5 years 7 months ago

Jason and Pote (aka Bill and Ben or even Dumb and Dumber)

As we know

In the letter from the HM Courts & Tribunals Service, it confirms:

“Accordingly your payment has been forwarded to the Approved Enforcement Agent to credit against the money owed”

Where is your evidence to contradict this evidence ? Come on, you must have something more than hot air

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Guest
PoteyPottyMouth
5 years 7 months ago

You make claims about legal arguments etc, then you should know that claims have to be supported by evidence – Where is yours ?

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Guest
PoteyPottyMouth
5 years 7 months ago

Anyone else notice how silent Tuco/Statto is on this one ? Not even so much as a sniff of an insult

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Admin
Schedule One
5 years 7 months ago

After examining the Taking Control of Goods (Fees) Regulations 2014, Mr Kruse concluded by stating as follows:

“That’s all fine- as long as the agent gets the cash. If it goes to the creditor, what then happens? I think that the assumption is that the creditor will pass on the sums received in order to allow the enforcement agent to make the correct distribution following the fee scale. This is their responsibility, not the creditor’s.

That said, it is perhaps asking a lot of a creditor to give up the lump sum they’ve just got their hands on. At the very least, the creditor must seek a breakdown of the fees calculation from the agency and transmit to them the amount due for fees.

But what of the balance? This must be regarded as the net amount remaining after the proper deduction of fees and expenses. It will predominantly comprise the debt.

Debtors like to think that by direct payment they have discharged the debt and left the bailiff without his fees, but this cannot be an honest interpretation of the wording or intention of the Regulations. There will still be a balance of the debt outstanding and this may still be quite properly enforceable– with extra fees of course being a possibility”

My emphasis.

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