Discussion thread no. 78

[lgfa92]

Re: Discussion thread no. 78

Actually, it does. The Newcastle Under Lyme case has confirmed so. Were a council to go ahead with a committal hearing before attempting an attachment, they would expose themselves to at least the costs of the court hearing and possibly the debtors legal costs if (s)he was represented.

Expose themselves, yes. But the A & E regulations don't forbid the council from pursuing the committal without trying an attachment first. That case (assuming you mean ex parte Massey - I have the case report for that one) found that the court was negligent in not considering alternatives before committal. It never said the council should have tried others first and it was the magistrates who got the kicking off the judge.

Furthermore, it is highly unlikely that an LGO finding would be in conflict of anything that was written in the practice notes.

The LGO is only advisory - although most local authorities will follow it's recommendation.

Craig / lgfa92

[Henti]

Re: Discussion thread no. 78

I must say that I have a problem with your idea regarding that the authority must offer a AOE.
One would think that if the bailiff established there were no funds available, it would be an exercise in futility.

[Indebt]

Re: Previously posted, removal notice

I was I think correct, the authority decides which enforcement power to use after the liability order is issued and before any "warrant" is sent to the bailiff.
I should say that I say warrant for convenience it is really, an enforcement order.

The notice is issued by the authority in the intervening period. As our we!l informed friend says, it is also enforceable by the authority.

No-You were incorrect. You stated "warrant" but no warrant is issued for council tax. You are not very clear in your terminology. You remind me of someone else who used to post on here-he can never express himself properly either.

You still don't seem able to understand that in the case in question, the OP never received a demand as she had moved address. You might also wish to consider that those who decide to sit it out are usually rewarded with an attachment eventually as well-This is despite them not providing info at the LO stage.

[Indebt]

Re: Discussion thread no. 78

I must say that I have a problem with your idea regarding that the authority must offer a AOE.
One would think that if the bailiff established there were no funds available, it would be an exercise in futility.

Correctamundo

When fees were being considered, allowances were made for those occasions when a bailiff was unable to enforce/collect his fees.

The purpose of the Schedule 12 procedure is to take control of goods to sell in order to recover an amount outstanding-It is not to be used as a debt collecting facility because it is easier for councils.

If a bailiff established there were no funds or goods available, the correct course of action would be to return the debt to the creditor. Of course, in reality, they rarely do so because they lose out financially by doing so.

If an AOE/AOB had not been attempted then it must be before committal is considered, likewise bankruptcy and a charging order.

[lgfa92]

Re: Discussion thread no. 78

I must say that I have a problem with your idea regarding that the authority must offer a AOE.
One would think that if the bailiff established there were no funds available, it would be an exercise in futility.

An AOE could still be used but you are right in that usually if it's got to an enforcement agent the council would have tried and failed with an attachment (in general I never issue an enforcement agent where an AOE could be tried first).

Some local authorities will empower an enforcement agency company to also issue Regulations 36 notice and AOE's on their behalf. Clearly they couldn't use these powers as enforcement agents but they can as authorised officers of the council. Usually this happened if they had tried enforcement action, couldn't collect but work details had been located and the agent would then work an AOE on behalf of the council.

An AOE is entirely voluntary under the A&E regs from the issuing point of view - a council doesn't have to try it.

Making of attachment of earnings order
37.—(1) Where a liability order has been made and the debtor against whom it was made is an individual, the authority which applied for the order may make an order under this regulation to secure the payment of any outstanding sum which is or forms part of the amount in respect of which the liability order was made

That being said, if you get to a committal court they would ask why you hadn't already looked at that option and could order an AOE be tried as part of their judgement. Likewise with other enforcement options (other then the required enforcement agent action which has to have happened anyway).

Craig / lgfa92

[Henti]

Re: Discussion thread no. 78

Thank you, interesting.

[Indebt]

Re: Discussion thread no. 78

Expose themselves, yes. But the A & E regulations don't forbid the council from pursuing the committal without trying an attachment first. That case (assuming you mean ex parte Massey - I have the case report for that one) found that the court was negligent in not considering alternatives before committal. It never said the council should have tried others first and it was the magistrates who got the kicking off the judge.


The LGO is only advisory - although most local authorities will follow it's recommendation.

Craig / lgfa92

Magistrates regularly got their bottoms smacked when the Wise brothers were involved, be it council tax or imprisonment for court fines. Lets face it, magistrates are hardly fonts of all knowledge are they?

The reality is that committal is not an option until all other options have been attempted. Councils do not attempt committal unless it is a very last resort. In fact, it has been established that it is rarely if ever lawful in any case.

In the case of the thread which prompted this discussion, the OP is a mother. That ring fences her from committal under Article 8 of the Human Rights Act 1988-Right to Family Life:

I'd have a word with your council if I were you-If they are genuinely applying for committal hearings before other remedies are being considered, they are walking on very shaky ground. I'd start by telling them to have a read of Practice Note 9.

[lgfa92]

Re: Previously posted, removal notice

I'd have a word with your council if I were you-If they are genuinely applying for committal hearings before other remedies are being considered, they are walking on very shaky ground. I'd start by telling them to have a read of Practice Note 9.

It was pointed out to them that applying without having tried other issues was a route to failure (and a unneeded timely delay in collecting monies).

They did eventually grasp that paying extra, just to have the court order what you could have done anyway, wasn't justifiable - I told them that ( I worked for them), as did others, but the budget cuts finally made up their minds.

Craig / lgfa92

[Indebt]

Re: Discussion thread no. 78

It wasn't just a route of failure-It was unlawful. Notwithstanding the fact that a right to family life protects all parents from imprisonment for council tax, the council need to be satisfied that the non payment is due to wilful refusal or culpable neglect. If they have not attempted an attachment, then they will not have satisfied themselves of this.

[lgfa92]

Re: Discussion thread no. 78

It wasn't just a route of failure-It was unlawful. Notwithstanding the fact that a right to family life protects all parents from imprisonment for council tax, the council need to be satisfied that the non payment is due to wilful refusal or culpable neglect. If they have not attempted an attachment, then they will not have satisfied themselves of this.

The council have no legal requirement to consider wilful refusal / culpable neglect in council tax legislation - reg 47(1) merely says the council have to have tried an enforcement agent

47.—(1) Where a billing authority has sought to levy an amount by distress under regulation 45, the debtor is an individual who has attained the age of 18 years, and the person making the distress reports to the authority that he was unable (for whatever reason) to find any or sufficient goods of the debtor on which to levy the amount, the authority may apply to a magistrates' court for the issue of a warrant committing the debtor to prison.

Reg 47(2) is the first step where wilful refusal / culpable neglect comes in to the decision making process.

(2) On such application being made the court shall (in the debtor’s presence) inquire as to his means and inquire whether the failure to pay which has led to the application is due to his wilful refusal or culpable neglect.

Craig / lgfa92

[Indebt]

Re: Discussion thread no. 78

This is getting silly now.

A debtor cannot be jailed unless it can be shown beyond reasonable doubt that he has wilfully refused to pay or has grossly neglected his responsibilities yet the council can still legally apply for imprisonment in any case? It would be an abuse of process.

Finally, a bailiff company cannot simply return a debt and claim that they attempted to take control of goods. They must actually make an attempt to take control of goods. Simply returning a debt because a debtor is pregnant or suffers anxiety is not grounds to instigate committal proceedings.

Things have evolved over the years. Councils thankfully now know they risk repercussions if they try to fast track to committal. I know of no councils who go for committal prior to other options being attempted first. It is very unusual for a council to opt for this, especially given they will end up paying for the hearing.

In the case discussed, it was wrong to tell the OP that she could be summonsed to a committal hearing, firstly because taking control had not been attempted and secondly because of the Human rights Act

[Milo]

Re: Discussion thread no. 78

In this particular case, the OP does not ask anyone to look favourably at her case. She simply asks for legislation to be adhered to and that she is afforded her statutory right of 7 clear days notice before enforcement is begun.

With the greatest of respect, the local authority have done nothing wrong at all. They have adhered to legislation. The young lady (Worried Parent) left her previous property and failed to advise the council of a new address.

The Local Government Ombudsman has rejected a number of similar complaints. Below are two fairly recent decisions:


LGO complaint regarding homeowner failing to provide evidence to council of a new address:


Gedling Borough Council


http://www.lgo.org.uk/decisions/bene...tax/16-003-100



The complaint

The complainant, whom I shall refer to as Mr X, complains the Council did not act on his wife’s telephone call notifying it of their change of address. He also complains the Council is pursuing him for fees incurred for late payment of council tax.


How I considered this complaint

I reviewed the information provided by Mr X, which included the details of his complaint and the Council’s response to it. I shared my draft decision with Mr X and took account of his comments.


What I found

Mr X moved house in September 2015. The new occupants of his former property contacted the Council to provide their details and became liable for council tax from the date they moved in.

The Council issued a final bill to Mr X for unpaid council tax but says Mr X did not provide a forwarding address. It therefore sent the bill to the property address. Mr X says his wife Mrs X did provide their new address to the Council but has been unable to provide any evidence of her telephone call. The Council is therefore unable to find any record of it.


Mr X did not receive the council tax demand, so he did not pay it. The Council therefore took action to pursue payment, obtaining a liability order against him through the Magistrates’ Court; this added £80 to his council tax debt. As Mr X still did not pay, the Council instructed enforcement agents (bailiffs) to pursue the outstanding balance on his account. This incurred a further £75 compliance stage fee.

The Council’s bailiffs located Mr X in February 2016 and Mr X has since paid his outstanding council tax.

He refuses, however, to pay the additional fees incurred and complains about the Council’s attempts to pursue him for payment. The Council says £155 remains payable and that if Mr X does not pay, its bailiffs will take further action, increasing the amount owed to £235.


The Ombudsman will not investigate Mr X’s complaint that the Council did not act on his wife’s notification of their change of address as there is not enough evidence of fault.

The Council is unable to find any record of Mrs X’s telephone call and Mr X is unable to provide any evidence of it. Without any evidence to show Mrs X provided their new address the Ombudsman is unlikely to find fault in the Council’s decision to pursue Mr X’s council tax arrears which incurred further costs for him.

[Milo]

Re: Discussion thread no. 78

A second similar LGO decision is here:


Southampton City Council (15 012 149)


http://www.lgo.org.uk/decisions/bene...tax/15-012-149




What I found

Mr X says that he left a property in October 2013 and set up a direct debit to pay off the council tax arrears (following a Liability Order). However, his ex-partner cancelled the order when clearing the account.


As no further payments had been received, the Council instructed bailiffs to recover the amount.


Mr X was contacted by bailiffs in August 2015. Mr X says that this is unfair and the costs have now increased substantially. He says that the Council did not contact to him to tell him what action it was taking.


I note that Mr X did not appear to have advised the Council of his new address when he moved.

Councils are entitled to instruct bailiffs to recover debts when an account is in arrears and a Liability Order has been obtained. Ultimately it is for the liable person to ensure that their council tax has been paid as they are legally bound to pay the amount.


There is no evidence of maladministration in the way it has acted here.

In the absence of maladministration it is not for the Ombudsman to question its decision to instruct bailiffs.

[Milo]

Re: Discussion thread no. 78

If a bailiff established there were no funds or goods available, the correct course of action would be to return the debt to the creditor. Of course, in reality, they rarely do so because they lose out financially by doing so.

You appear to be making up your own rules regarding bailiff enforcement but once again, you are misleading readers. Please read the following Local Government Ombudsman for clarification:


Local Authority: Trafford Council




5. Ms B has arrears of council tax for a property she used to live in. The arrears are just over £460. She does not dispute the arrears.


6. When the debt first arose the Council agreed a payment arrangement with Ms B. The payments were not made so the arrangement was cancelled.


7. Ms B lives with her partner and they have a young child. Ms B says her and her partner have separate finances. The debt arose before she was living with her partner. Ms B has no income and receives no benefits other than child benefit. Her partner pays for all household expenses. Ms B has other debts. She suffers from severe anxiety and post natal depression.


8. The Council has asked Ms B for details of the household income including her partner’s income and expenditure. Ms B says she cannot provide it as she does not know it. As she has no income this would mean that effectively her partner would be paying her debt from a time before they were together.
The issues


The repayment arrangement


9. It is not for me to say how much Ms B should repay. I am considering whether there is any administrative fault in how the Council has considered the matter.


10. The Council considered it could take into account Ms B’s partner’s income because the only reason she does not have any other income (including benefits) is because he is supporting her. The Council has referred to how entitlement to benefit is assessed which will take into account household income. If Ms B received benefits (other than child benefit) the Council could apply for a deduction from her benefits.


11. I do not consider there was fault in the Council asking for Ms B to provide details of the household income. However once it became clear that Ms B did not have details of his income I consider it was wrong for the Council to continue to press Ms B to provide the information.


12. The Council proposed that a suitable payment arrangement with Ms B to clear the debt would be £40 a month which would mean it was cleared in a year. Ms B’s only known income is £20 a week child benefit. As the Council has no reason to believe that Ms B has more income available to her I do not consider the Council’s proposed payment arrangement is flawed and cannot be justified.


13. The Council has now asked Ms B for proof of her income.


Vulnerability


14. Ms B considered the Council should recall the debt from the bailiffs. The Council accepts that Ms B is vulnerable.


15. The Council’s position is that where a debtor is vulnerable it will put a hold on the action with its enforcement agents and carry out a financial assessment. Once an arrangement has been agreed the Council would liaise with its agents and instruct them to add this to their records.


16. The Council comments that it has taken control of this case in accordance with the relevant provisions of the guidance. The Council further states the guidance and regulations do not provide that vulnerability ends enforcement. Nor does a declaration by a debtor that they have no goods cease enforcement as this can only be confirmed by an enforcement agent visit. It is the duty of the enforcement agent to search for goods on behalf of the creditor. It is not the case that because a debtor is vulnerable then the creditor may not take control of goods provided the correct process is followed.


17. I do not consider there was administrative fault by the Council on this point. The matter was put on hold with the bailiffs and that has continued during my investigation.


http://www.lgo.org.uk/decisions/bene...tax/15-005-395

[Indebt]

Re: Discussion thread no. 78

I quire agree Milo-The council have indeed done nothing wrong.

However, Rundles have. Writing to Rundles is about as much use as the irrelevant LGO decisions that you have posted.

In order to make any progress here, the council need to be made aware of the breach of legislation (and it is a breach) As Rundles are acting on behalf of the council, the OP has just as much right to complain to them, as she does to Rundles. A complaint enters a system. It has to follow due process. It is far more likely to get a result than a pretty little letter, asking nicely with a cherry on top will.

For clarity, the complaint has nothing to do with leaving a property. It is the debtors responsibility to notify of a change of address (as I explained in the original thread). The complaint is that the matter has been fast tracked to the enforcement stage before the OP has been given the statutory 7 clear days notice. This has added £235 to the account and also places the OP in a very precarious position as the full force of enforcement is being applied.

The OP owes some money. She should complain, getting enforcement bought back to compliance stage. Negotiate a repayment plan that is affordable (not the £100 per month that you recommended) and that takes into account that she is on benefits. Once all that is in place, she will have many months in which to deal with the account for the period when she was not resident at the property. This doesn't have to be done immediately and is not priority.

You suggested that she should sit it out for 3 to 6 months. That, quite frankly is appalling advice and also contradicts what you have previously stated. This young woman should not be exposed to 3 to 6 months of threats and intimidation. You then said that you could make a phone call to your friends at Rundles and get the bailiff stopped. If you can do this then I urge you to do so-It is the best option and I will happily stand back and let you carry on. If you cannot do this then you really need to let me handle the matter-You may not like it, but I do get things done.