Discussion thread no. 78

[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.

[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.

[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.

[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: Previously posted, removal notice

This is what you said:

"I believe it is also required that the debtor returns a personal statement of means to the authority before a warrant is issued."

This is what the first 7 words of the regulation you quoted states:

"Where a liability order has been made......"

This means that the power under Regulation 36 applies AFTER the LO has been issued, as I said previously, NOT before the warrant is issued (which is before the LO is issued) as you stated.

It is the LO that gives the authority the power to require information-They do not have it until a LO has been issued.

In this case, the LO was issued prior to the OP having knowledge of it as all correspondence was sent to her last known address. The council have not considered an attachment, so must do so before committal proceedings are instigated.

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.

[Indebt]

Re: Previously posted, removal notice

It would but of course it doesn't mean they can't go to a committal application without having done so (and I've known it tried, eventually common sense took over and it was not proceeded with)

That being said, any magistrate in a committal case who didn't raise a failure on those points with the local authority as part of the hearing needs to be questioned as to why.

Craig

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.

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

[Henti]

Re: Previously posted, removal notice

Most local authorities will try and issue a Regulation 36 notice but it's not a requirement- if it's been issued then it can be a fineable offence not to provide the information (if the local authority pursue it - mine never used to). The notice can only be issued under a Liability Order.

If a person doesn't provide the information demanded on a Regulation 36 notice and the local authority don't get the info from some other means then an AOE won't be a viable option. Usually the cases that end up looking for committal action are those who wouldn't bother returning the Regulation 36 notice.

Craig / lgfa92

Yes that was what I had in mind.

[lgfa92]

Re: Previously posted, removal notice

From reading the LGFA it seems that the committal is the next step after bailiff action , which would seem to indicate AOEs should be the first. If this has been considered and passed over before the bailiffs were involved then it would have to be committal afterwards. This is certainly what the LGFA and also the magistrates court suggest.

I also wonder what percentage off hearings result in actual committal hearings end up incarcerated, I will be willing to bet it was quite low.

The action in the LGFA doesn't have to happen in order - action can jump back and forwards between different remedies. The only exception would a committal order (has to happen after an enforcement agent has been used first), and obviously a charging order or bankruptcy would be the final solution (unless they failed).

A local authority could (and I've seen similar) - issue a reg 36 notice, consider issuing an AOE, use an enforcement agent, issue another reg 36 notice, try and fail at an AOE, apply for committal.

Craig / lgfa92

[Indebt]

Re: Discussion thread no. 78

Thank you Ameythyst.

There is actually nothing more than needs to be said. The young lady is meeeting with the CAB in the morning and most CAB advisors are able to arrange for suitable cases to be referred to the Welfare Dept. If they are unable to do so, I have offered to provide assistance to her.

Each enforcement company have hundreds if not thousands of cases under the control of a Welfare Dept and contrary to some reports, most companies will look favourably at removing the enforcement fee and leaving just the Compliance Fee of £75 intact (which to my mind is very fair).

I have been very fortunate in visiting some Welfare Departments and honestly....I cannot fault them.

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.

[lgfa92]

Re: Previously posted, removal notice

Most local authorities will try and issue a Regulation 36 notice but it's not a requirement- if it's been issued then it can be a fineable offence not to provide the information (if the local authority pursue it - mine never used to). The notice can only be issued under a Liability Order.

If a person doesn't provide the information demanded on a Regulation 36 notice and the local authority don't get the info from some other means then an AOE won't be a viable option. Usually the cases that end up looking for committal action are those who wouldn't bother returning the Regulation 36 notice.

Craig / lgfa92

[lgfa92]

Re: Previously posted, removal notice

It would simply be a waste of the courts time to bring an application for committal, only for the court to make exactly the same order (attachment) to be made that could have been made without the need to trouble the court.

It would but of course it doesn't mean they can't go to a committal application without having done so (and I've known it tried, eventually common sense took over and it was not proceeded with)

That being said, any magistrate in a committal case who didn't raise a failure on those points with the local authority as part of the hearing needs to be questioned as to why.

Craig

[Milo]

Re: Discussion thread no. 78

Thank you Ameythyst.

There is actually nothing more than needs to be said. The young lady is meeeting with the CAB in the morning and most CAB advisors are able to arrange for suitable cases to be referred to the Welfare Dept. If they are unable to do so, I have offered to provide assistance to her.

Each enforcement company have hundreds if not thousands of cases under the control of a Welfare Dept and contrary to some reports, most companies will look favourably at removing the enforcement fee and leaving just the Compliance Fee of £75 intact (which to my mind is very fair).

I have been very fortunate in visiting some Welfare Departments and honestly....I cannot fault them.

[Amethyst]

Re: Previously posted, removal notice

Posts moved off the OP's thread - sort things out here. Don't be personal else I'll have to just ditch the thread.

[Indebt]

Re: Previously posted, removal notice

This is what you said:

"I believe it is also required that the debtor returns a personal statement of means to the authority before a warrant is issued."

This is what the first 7 words of the regulation you quoted states:

"Where a liability order has been made......"

This means that the power under Regulation 36 applies AFTER the LO has been issued, as I said previously, NOT before the warrant is issued (which is before the LO is issued) as you stated.

It is the LO that gives the authority the power to require information-They do not have it until a LO has been issued.

In this case, the LO was issued prior to the OP having knowledge of it as all correspondence was sent to her last known address. The council have not considered an attachment, so must do so before committal proceedings are instigated.

[Henti]

Re: Previously posted, removal notice

As stated previously, if you actually bothered to read the posts, you would see that it was Milo who was getting personal.

Anyway-I thought you were bleating about taking the thread off topic? You seem to be more guilty of doing so than anyone.

Lets leave it for the OP now eh?

Excellent idea,well done.