Dispute with Bailiff

[nogger]

Re: Dispute with Bailiff

Amy,

Point taken, I think I was trying to do too much in one letter and have now written two, one as a response to there letter and the one below regarding the Card Fees.

Can you take a look at it please?

Re: Council Tax Reference: ******

I have had an opportunity to seek advice and I write on the understanding that Case Law has ruled an Authority is liable for its bailiffs. [Council] and its Executive Officers may be criminally liable for Assisting an Offender by receiving or benefiting from the proceeds of a money transfer originating from crime.

I have enclosed a copy of a letter received from [Bailiff[ which details the charges and fees added to my account. They have indicated that they have charged Card Transaction Fees for all debit card payments made. There is no entitlement for your bailiff to charge me a Card Fee or any fee to process a money transfer for himself because the law does not prescribe any fee of that description.

Section 10 of the Distress for Rent Rules 1988 states:

No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

I appreciate the public are less-informed of the prescribed fees bailiffs are entitled to charge, I believe they have taken advantage of this to make a gain or obtain an unlawful money transfer for himself or another. I am quite sure the council did not intend to contract a firm of tricksters who have been found defrauding a member of the public in this way. They may be bailiffs but that does not make them less liable than any other public service contractor, e.g. an electrician. However, a bailiff is in a position of trust and in abusing that position and charging me a 2.5% Card Transaction Fee [Bailiff] have committed an offence and defrauded me under Section 2(1)(b)(i) and Section 4(1)(c)(i) of the Fraud Act 2006.


For the avoidance of doubt, that in your failure to furnish me with a satisfactory response within seven days, I will automatically file a complaint with the Local Government Ombudsman that you the council is aware that a contractor working under your instruction is engaging in criminal activity by defrauding members of the public. If you wish to start an investigation of your own, please be advised that in the absence of a response this doesn't delay proceedings or filing a criminal complaint with a police authority.

This document is a notice of proceedings and is delivered by Royal Mail Recorded Delivery and I deem it to be served on you by the ordinary course of post in the meaning of Section 7 of the Interpretation Act 1978 and therefore your responsibility and in your own interests this letter is handed to the relevant person within your organisation, and I regret I am unable to discuss this matter by telephone or in person as I am acting under legal advice.

I request a copy of this letter is kept on file with my account for future reference.

I think that is more straight forward and to the point, what do you think?

[Amy]

Re: Dispute with Bailiff

Yep, that sounds good. Send it and don't forget your proof of posting.

[nogger]

Re: Dispute with Bailiff

Quick update:

I've received an acknowledment letter from the Council 7 days ago, no response or acknowledgement from the Bailiff, I thought I'd leave it another week to see if any response was forthcoming, (what was I expecting!!!).

Should I now proceed with a Form 4 Complaint against the Bailiff?

Should I also back this up with a letter to my local police authority?

I have completed a Form 4 online and can scan it for someone to take look at!!

Have also drafted a letter to submit to the police, which can be posted here for review.

Please advise my next step.

In my research into the Form 4 Complaint, I have discovered that the Distress for Rent Rules are not wholly relevant to Council Tax, the Fees allowed to be charged are coverd by the Council Tax (Administration and Enforcement) Regulations 1992, Statutory Instrument No. 613. Schedule 5. (see here http://www.opsi.gov.uk/SI/si1992/Uksi_19920613_en_1.htm).

[nogger]

Re: Dispute with Bailiff

Amy,

I have now received a response letter from the Council, copied below: -

Further to your letters dated the 25 March 2010 concerning your unpaid council tax accounts and the communication you have received from [Bailiffs]. I have enclosed statement of your accounts and also included accounts that have now been settled, as this should evidence that all your payments have been correctly receipted by the bailiffs. Whilst the bailiffs have issued you with statements which detail the charges and payments, they have only issued these in respect of current outstanding accounts. Unfortunately given how you conduct your accounts it has been necessary to instruct bailiffs previously and the payments you are quoting relate to archived accounts that are now paid.

In respect of your specific queries I can confirm the following:

• The bailiffs are certified and fully aware of the law in respect of levying distress for Council Tax and the fees and charges as outlined in Schedule 5 of the Council Tax (Administration & Enforcement) Regulation 1992/613 Finance Act 1992.
• In respect of the levy, the bailiffs have confirmed that they posted the levy through your post box. You have already indicated that you refuse access to allow for a levy to be undertaken as such the bailiffs were quite correct in undertaking a levy on goods that were in the garden.
• You state that the pool is a child's pool, yet the bailiffs have informed me that given the size of the pool it is suitable for adults. Therefore they have classed this as a family asset as opposed to a child's toy.
• Where the levy is not sufficient to cover the outstanding debt, this does not prevent the levy taking place. In fact the law allows for further levy's to be undertaken if the goods do not clear the debt. The bailiffs must levy goods that are deemed to have a market value.
• The fee charged for attending with a view to remove goods is outlined in Schedule5 as reasonable costs. Whilst you have researched the cost of hiring a van, you have not considered the additional costs of tax, insurance, petrol, bailiff salary and on costs or the salary and on costs of the office support staff.
• The transaction costs for the card payments are administration charges and detailed on the reverse of the levy. These fees are payable to the banks and if you pay by this method then you will have to bear the costs of the transaction that is levied by the bank, not the bailiffs.
• Unfortunately you are quoting Distress for Rent which is clearly incorrect and not appropriate in respect of Council Tax.
• You have requested copies of the liability orders, as the order is part of a bulk application then I suggest you contact me direct on ******* and I will make the necessary arrangements for you to view the bulk application in the office.

I have enclosed statement of your accounts and also included accounts that have now been settled, as this should evidence that all your payments have been correctly receipted by the bailiffs. Whilst the bailiffs have issued you with statements which detail the charges and payments, they have only issued these in respect of current outstanding accounts. Unfortunately given how you conduct your accounts it has been necessary to instruct bailiffs previously and the payments you are quoting relate to archived accounts that are now paid.

In respect of your second letter dated the 25 March 2010, I can confirm the following:

• This authority instructs the bailiffs to collect in respect of the outstanding liability orders as such the bailiffs are acting as our agents in the collection of the outstanding monies.
• I have already explained that you are incorrectly quoting distress for rent and that Schedule 5 of the Council Tax (Administration and Enforcement) Regulations 1992/613 is appropriate.
• You have suggested that the public are less informed of the prescribed fees. In this respect it is appropriate to remind you that this authority issues a copy of Schedule5 with the notice of the liability order. This notice outlines the need to make payment, supply employment details or to contact this office to set up agreements to avoid bailiff being instructed to levy distress. Additionally the bailiffs also outline the charges on their documentation when they levy distress. I think you will agree that the fees and charges are therefore transparent.

I have enclosed an income and expenditure form as requested and suggest that you complete this and return it to me along with your employment details as previously requested in line with regulation 36 of the Council Tax (Administration and Enforcement) Regulations 1992/613.The legislation outlines that you have 14 days to supply this information and failure to do so is a criminal offence for which you can be fined.

Therefore please ensure that you complete the income and expenditure sheet along with details of your employment in the pre paid envelope by the 26 April 2010. Additionally you will need to provide me with details of where you are residing as a care of address is not appropriate. Failure to do so will result in your residency with your wife being re-instigated from the date you state you moved out. I hope this fully clarifies the situation and confirm that I will hold your account until the 26 April 2010 pending receipt of the requested information. In the meantime whilst this letter is comprehensive to ensure that all your queries have been addressed, should you have any further queries then please do not hesitate to contact me.

They have explained the "missing" payments although I was unaware of any other accounts. but this doesn't detract from the basis of the complaint. The Bailiff has made charges and levied incorrectly, I cannot see a reasonable defence for this in the response. What are your thoughts?

Also note the reference to the Council Tax (Enforcement & Administration) Regulations 1992 (SI613). This has slightly flawed my complaint but I have checked this SI 613 Schedule 5 (see previous post) and found that it really doesn't differ much to the Distress for Rent rules.

Question 1: Can the Authority enforce an Attachment of Earnings Order if they have already instructed a Bailiff to Levy Distress? My understanding is no, they can only employ one enforcement method at a time.

Question 2: Am I still legally obliged to supply the information regarding employer etc for the Attachment of Earnings order if they have levied distress?

Question 3: The kids pool is a 10ft inflatable paddling pool can this reasonably be assumed to be suitable for adults and therefore a family asset? and it was bought by their grandmother as a christmas present!!

Question 4: Schedule 5 of SI613 states reasonable costs can be charged for attending with a view to remove, should this include the costs identified in the letter?

Question 6: Card Transaction Fees, are fees payable to the banks etc.. surely this is part of their overhead costs which are covered by all their other charges?

Question 7: It is obvious from the response letter that I have separated from my wife and am currently living with friends in another council area, I do not wish to give their address and involve them with Bailiffs calling at their home, it's bad enough me imposing on them. Surely my "care of" address is sufficient?

All help and comments would be appreciated.

[Amy]

Re: Dispute with Bailiff

In respect of your specific queries I can confirm the following:

• The bailiffs are certified and fully aware of the law in respect of levying distress for Council Tax and the fees and charges as outlined in Schedule 5 of the Council Tax (Administration & Enforcement) Regulation 1992/613 Finance Act 1992.

Bailiffs are not "certified", they are "certificated".

• You state that the pool is a child's pool, yet the bailiffs have informed me that given the size of the pool it is suitable for adults. Therefore they have classed this as a family asset as opposed to a child's toy.

Semantics.

• Where the levy is not sufficient to cover the outstanding debt, this does not prevent the levy taking place. In fact the law allows for further levy's to be undertaken if the goods do not clear the debt. The bailiffs must levy goods that are deemed to have a market value.

I would argue that the debt should have been returned to the council as Nulla Bona and seizing some garden furniture and a paddling pool is nothing short of a lesson in how to earn some money. What "market value" would a second hand 10ft wide children's paddling pool have then?

• The fee charged for attending with a view to remove goods is outlined in Schedule5 as reasonable costs. Whilst you have researched the cost of hiring a van, you have not considered the additional costs of tax, insurance, petrol, bailiff salary and on costs or the salary and on costs of the office support staff.

This is rubbish. "Reasonable costs" does not specify that they cannot charge for shoes the bailiff wears either in order that he can walk to and from these addresses, but it doesn't mean they are entitled to charge for it if they wish.

• The transaction costs for the card payments are administration charges and detailed on the reverse of the levy. These fees are payable to the banks and if you pay by this method then you will have to bear the costs of the transaction that is levied by the bank, not the bailiffs.

Rubbish. Charging unprescribed fees is fraud. It is that simple. Ask them where on Schedule 5 does it say they are allowed to charge this. Merely adding it to the back of a letter hardly counts as much does it?

In respect of your second letter dated the 25 March 2010, I can confirm the following:

• This authority instructs the bailiffs to collect in respect of the outstanding liability orders as such the bailiffs are acting as our agents in the collection of the outstanding monies.

Exactly and by allowing the bailiff to charge unprescribed fees they are also committing fraud.

• You have suggested that the public are less informed of the prescribed fees. In this respect it is appropriate to remind you that this authority issues a copy of Schedule5 with the notice of the liability order. This notice outlines the need to make payment, supply employment details or to contact this office to set up agreements to avoid bailiff being instructed to levy distress. Additionally the bailiffs also outline the charges on their documentation when they levy distress. I think you will agree that the fees and charges are therefore transparent.

Perfect, ask them where on Schedule 5 it is detailed that they are allowed to charge card fees.

I have enclosed an income and expenditure form as requested and suggest that you complete this and return it to me along with your employment details as previously requested in line with regulation 36 of the Council Tax (Administration and Enforcement) Regulations 1992/613.The legislation outlines that you have 14 days to supply this information and failure to do so is a criminal offence for which you can be fined.

Pot, kettle.

Question 1: Can the Authority enforce an Attachment of Earnings Order if they have already instructed a Bailiff to Levy Distress? My understanding is no, they can only employ one enforcement method at a time.

I believe they can if the debt is returned to them Nulla Bona, which it hasn't been.

Question 2: Am I still legally obliged to supply the information regarding employer etc for the Attachment of Earnings order if they have levied distress?

I would ignore this for the time being and I think you should write back to the idiots again pointing out their many errors.

Question 7: It is obvious from the response letter that I have separated from my wife and am currently living with friends in another council area, I do not wish to give their address and involve them with Bailiffs calling at their home, it's bad enough me imposing on them. Surely my "care of" address is sufficient?

Put this in to your next letter to them.

[Amy]

Re: Dispute with Bailiff

Schedule 5, for reference.

The Council Tax (Administration and Enforcement) Regulations 1992

[nogger]

Re: Dispute with Bailiff

Hi Amy,

Below is a draft letter in response to the Authority letter previously posted, what are your thoughts comments?

Further to your letter dated 6th April 2010 regarding the above council tax accounts, I respond as follows:-

You stated:

1) The bailiffs are certified and fully aware of the law in respect of levying distress for Council Tax and the fees and charges as outlined in Schedule 5 of the Council Tax (Administration & Enforcement) Regulation 1992/613 Finance Act 1992.

I must point out that bailiffs are Certificated not Certified.

2) In respect of the levy, the bailiffs have confirmed that they posted the levy through your post box. You have already indicated that you refuse access to allow for a levy to be undertaken as such the bailiffs were quite correct in undertaking a levy on goods that were in the garden.

The bailiff has not posted a levy through the letterbox, we have not agreed a Walking Possession Agreement either, no documents had been received regarding a Levy prior to my request for copies on the Subject Access Request.

3) You state that the pool is a child's pool, yet the bailiffs have informed me that given the size of the pool it is suitable for adults. Therefore they have classed this as a family asset as opposed to a child's toy.

I am not prepared to argue semantics with you.

4) Where the levy is not sufficient to cover the outstanding debt, this does not prevent the levy taking place. In fact the law allows for further levy's to be undertaken if the goods do not clear the debt. The bailiffs must levy goods that are deemed to have a market value.

I would argue that the debt should have been returned to the council as Nulla Bona and seizing some garden furniture and a paddling pool is nothing short of a lesson in how to earn some money. What "market value" would a second hand 10ft wide children's paddling pool have?

5) The fee charged for attending with a view to remove goods is outlined in Schedule5 as reasonable costs. Whilst you have researched the cost of hiring a van, you have not considered the additional costs of tax, insurance, petrol, bailiff salary and on costs or the salary and on costs of the office support staff.

"Reasonable costs" does not specify that they cannot charge for shoes the bailiff wears either in order that he can walk to and from these addresses, but it doesn't mean they are entitled to charge for it if they wish. [Bailiff] must provide a complete breakdown of how they have arrived at the £150.00 figure for attending with a view to remove goods as requested in my Subject Access Request.

A bailiff does not have free rein to charge what he likes because the schedule of charges does not stipulate a sum but rather provides for "reasonable costs". It may well be common practice for the bailiff to make these charges but that does not make them lawful.

6) The transaction costs for the card payments are administration charges and detailed on the reverse of the levy. These fees are payable to the banks and if you pay by this method then you will have to bear the costs of the transaction that is levied by the bank, not the bailiffs.

Charging un-prescribed fees is fraud. It is that simple. Where on Schedule 5 does it say they are allowed to charge this? Merely adding it to the back of a letter hardly counts as much does it? I am certainly not accepting a charge for an un-prescribed fee especially when I have not been provided with proof that this cost was actually incurred.

7) This authority instructs the bailiffs to collect in respect of the outstanding liability orders as such the bailiffs are acting as our agents in the collection of the outstanding monies.

Exactly and by allowing the bailiff to charge un-prescribed fees you are also committing fraud.

8) In this respect it is appropriate to remind you that this authority issues a copy of Schedule 5 with the notice of the liability order. This notice outlines the need to make payment, supply employment details or to contact this office to set up agreements to avoid bailiff being instructed to levy distress. Additionally the bailiffs also outline the charges on their documentation when they levy distress. I think you will agree that the fees and charges are therefore transparent.

I must reiterate, where on Schedule 5 it is detailed that they are allowed to charge card fees.

As you are aware I have separated from my wife, I am currently living with friends in another Authority area, I do not wish to give their address and involve them with Bailiffs calling at their home, it's bad enough me imposing on them. My "care of" address is sufficient for the purposes of all communications.

The Bailiff has stated that he has attended the property with a view to remove the goods on which he has levied in a Transit Connect van, the load carrying capacity of this vehicle in dimensions is 1193mm high x 1760mm long x 1266mm wide, how did he propose to remove the garden table which measures 2600mm long x 1275mm wide?


I have previously stated:

I am quite sure the council did not intend to contract a firm of tricksters who have been found defrauding a member of the public in this way. They may be bailiffs but that does not make them less liable than any other public service contractor, e.g. an electrician. However, a bailiff is in a position of trust and in abusing that position by charging me a 2.5% Card Transaction Fee [Bailiff ] have committed an offence and defrauded me under Section 2(1)(b)(i) and Section 4(1)(c)(i) of the Fraud Act 2006.

It should be noted that I am not at any point refusing to pay this debt and will continue to make payments in instalments for the sum of £100 per month which will arrive as cleared funds within your account by the 5th of each month; I believe this to be a fair payment considering my current circumstances and the issues raised herein.

For the avoidance of doubt, that in your failure to furnish me with a satisfactory response within fourteen days, I will automatically file at the bailiffs certificating court a Form 4 complaint on the grounds of abusing his position of trust and defrauding me with fees not prescribed in law. Please be advised that in the absence of a response this doesn't delay proceedings or filing a criminal complaint with a police authority.

I request a copy of this letter is kept on file with my account for future reference

[Amy]

Re: Dispute with Bailiff

Very good, send it.

All I would add though is a sentence to the final paragraph that in your Form 4 complaint you will be naming the council as they are vicariously liable for the actions of the bailiffs.