Problem with unfair/made-up bailiff fees.

[Sir Vere Brayne d'Emmidge]

Re: Problem with unfair/made-up bailiff fees.

Sir Vere, can you point me to the legislation or law that says it's 180 days on a levy? Does that mean 180 days full stop, or just if they don't visit for 180 days?

Have a look here:

http://www.legislation.gov.uk/ukpga/...12/paragraph/8

then you could always goodle with the words abandoned levy, which will ake you to a lot of case histories, but these can be confusing, one example, in a case the Judge decided that to clamp a vehicle and not removing it forthwith should be considered abandonment of levvy, yet another Judge ruled that when it comes tovehicles one must give time to the defaulter to pay before it's removed.

in 2014 things shuld be bette defined thanks to new legislation

http://www.legislation.gov.uk/uksi/2013/1894/made

However, the way that the law is applied in England and Wales, case history is more relevant than a written piece of legislation.

[CleverClogs]

Re: Problem with unfair/made-up bailiff fees.

in 2014 things shuld be bette defined thanks to new legislation

Wherein the current kakistocracy effectively declared war on all debtors in England - having declared, immediately after the election, that they'd not do that.

How can anyone believe anything that Cameron might promise in the future?

[labman]

Re: Problem with unfair/made-up bailiff fees.

Hi 7CS,

I've taken a bit of further professional advice over this and will post later with a response, so that it can hit the council early next week. FWIW, we're absolutely on the right lines, and we are correct about the levies. I have some authority to cite for you though. I would address it to the Head of the Council. If I haven't posted by 6 or 7pm tomorrow, please pm me and I'll post. Don't be worried about pestering me - it's the only way you'll get things done. lol

[7CS]

Re: Problem with unfair/made-up bailiff fees.

Thanks again Labman. I look forward to seeing what you've dug up! Getting desperate now and running out of time.

[labman]

Re: Problem with unfair/made-up bailiff fees.

Hi,

Here you go. If they do not do as you have asked, you must go to the LGO following this. Send Recorded Delivery to the CEO of the Council, cc your MP and the Leader of the Opposition for the Council). IGNORE copying in B&S, we are dumping this fully in the lap of the council now, as you will see. It may need slight adjustment as I was writing largely from memory, so read and double check for spelling etc... I hope it's right! Again it is uploaded as a Word file for your ease in sending it at the end. Incidentally, the top bailiff specialist is NOT me lol!

[Insert Address]

[Insert Date]

Dear [Insert Name of Head of Council],

Your Ref: abcd1234

I am writing once again with regards to the above account. I apologise for writing to you in person, but you will understand your council is vicariously liable with Bristow and Sutor, your appointed Enforcement Agents, for this account. Should I fail to receive a satisfactory outcome from this letter, I will be taking my complaint to the Local Government Ombudsman for his ruling. As you will see below, there is little doubt in whose favour that ruling will go.

I do not write this letter lightly, but after seeking professional legal advice from a top bailiff specialist. I will not bore you with the details – I have enclosed copies of all previous correspondence. However, your employees and agents are leaving the council wide open to litigation in their incorrect assertions and misinterpretations regarding the law of distress.


Firstly, may I tackle the issue of being told I must deal with the your appointed Enforcement Agents over this issue. Nowhere in legislation is that prescribed, and council policies cannot override statute. The council is vicariously liable, and ultimately responsible for this matter. They are thus responsible for the inaccuracies in the reply below from Bristow and Sutor (B&S).

Secondly, may I address the issue of the communication from your council dated [Insert Date] (copy attached). This quite clearly states that:

Council tax for the year 2009 / 10 [insert other years as appropriate] for which a Liability Order was issued has been paid.

Bailiff fees for Council Tax debts are paid to the bailiffs before the Council receives its money. Thus, if you have written to me stating the Council Tax has been paid, so too must the bailiff fees have been paid. With respect, if the council has a contract with B&S which allows for different arrangements over payment, this is a contract between you and B&S, not one to which I am party. My liability is thus discharged in full.

So let us now address the detail, over which I have sought professional legal advice. Miss Lostitch stated:

Your assumption that a levy can be abandoned after a period exceeding 5 months between visits is incorrect. To clarify once goods are seized the levy will remain valid until the outstanding debt including costs is paid in full.

This is not correct. In his book, ‘Law of Seizure of Goods – Debtor’s Rights and Remedies' (John Kruse), the issue of abandonment is addressed, and case law clearly states that the assertion above is wrong (Jones v Biernstein [1900] 1 QB 100). After a period in excess of six months, it would be very hard for you to argue any intention to remain in possession. The levy had clearly been abandoned (please see next point regarding this also).

Next:

The van/removal fee was charged as the bailiff attended with the intention of removing goods or collecting the outstanding balance. We must point out that when a bailiff is instructed to collect the full balance they are also legally entitled to re levy and remove other items in which a van would be necessary.

Again this is clearly incorrect. I refer you to the Local Government Ombudsman’s Report on the LB of Ealing. Although dated 1997, my legal counsel has checked directly with the LGO that this ruling is still good. It is, save the fee in section 34. The report states in sections 32 – 35:

32. The Secretary of the Certificated Bailiffs Association says that where there has been no levy there is, in his view, no doubt that a van charge cannot be made.

33. The Head of Revenue at the Chartered Institute of Public Finance and Accountancy also says that in his view the law is quite clear, and that van charges cannot be made unless distress has first been levied.

34. The Department of the Environment says it does not believe that there can be any interpretation of the regulations other than that no charge can be made for a van unless distress has been levied. Any charges for visits when distress has not been levied are limited to £27.50 for two visits.

35.The Council initially took the view that the bailiffs could charge for attendance with a vehicle even if distress had not been levied, but now agrees that no charge can be made for a van unless distress has been levied.

The case here is clear. You can see for yourself, and indeed check with the LGO for yourself, how they would rule. The van fee should not have been charged.

Returning to the response and the comment about re-levying, one has to consider how the LGO would view this statement. Why re-levy if you claim a levy is already in existence? If re-levying, then the original levy is confirmed as abandoned, and the bailiff has no idea the size of vehicle needed to remove any goods levied should a further levy take place. This is why van fees are NOT chargeable before distress has been levied. If they were indeed attending to remove the abandoned levy, how did they expect to fit my car in a van? Your argument here is senseless.

Finally, B&S state:

Documents will be sent to you by post to confirm that the bailiff visits took place however at this stage we feel that we have made our position clear therefore we will have no alternative but to continue recovery action for the outstanding balance of £338.50.

We trust this clarifies our position.

Yours faithfully,

Miss C Lostitch

I have already addressed this point. The council has confirmed the Council Tax has been paid. This could not be the case if the accompanying fees had not been paid, as they are paid first. Any contractual agreement between your Council and B&S does not include me. I have not entered any such contract with you.

In light of the above, I put you to strict proof that everything claimed on behalf of the Council by Miss Lostitch, representing your appointed Enforcement Agents, B&S, is correct. If you insist on stating this, then I will go to the LGO and let them rule on the matter. This does not preclude further criminal action against the council for Fraud by Misrepresentation (see the Government Guidelines, “Council Tax - Guidance to local councils on good practice in the collection of Council Tax arrears (June 2013)." I quote:

Local Authorities should remain prepared to deal directly with individuals at any point. It is perfectly within their gift to call action back from the bailiffs at any time and where there is a case to do so they should consider such action.

and:

Where bill payers get in contact with the Local Authority directly, concerns should be investigated properly, not simply referred back to the bailiff.

and:

Local Authorities remain responsible for the action of contractors……………. The Government consider that any fraudulent practices should be reported to the police as a criminal offence under the Fraud Act.

In resolution I would ask you reply confirming all bailiff fees are cleared, and all years’ Council Tax and any accompanying fees, prior to the current tax year, have been discharged in full. I would ask for this response within 14 calendar days of the date of this letter. Failure to do so will result in the matter being passed to the LGO, and further I reserve the right to pursue criminal proceedings against the Council following the LGO ruling.

I trust this sets out my position very clearly,



Yours sincerely,





Print Name
cc. Those mentioned at start of post
Enclosed: Copies of ALL previous correspondence.

[7CS]

Re: Problem with unfair/made-up bailiff fees.

Labman, I really can't thank you enough for your help and advice. I spoke to the leader of the council this morning, and explained the situation. I followed up by sending here exactly what you advised above, and copied in all previous correspondents.

I'll give her a call at close of play tomorrow if I haven't heard anything. I'll keep you posted.

Thanks again for your invaluable help.

[labman]

Re: Problem with unfair/made-up bailiff fees.

I sincerely hope it gets you a resolution at last. We'll watch with interest and keep everything crossed. :beagle:

[Sir Vere Brayne d'Emmidge]

Re: Problem with unfair/made-up bailiff fees.

Wherein the current kakistocracy effectively declared war on all debtors in England - having declared, immediately after the election, that they'd not do that.

How can anyone believe anything that Cameron might promise in the future?

The current "Junta de cabrones" is as trustworthy as the python in Jungle Book....just thought....I might be insulting the veracity of a python!

[Sir Vere Brayne d'Emmidge]

Re: Problem with unfair/made-up bailiff fees.

Hi,

Here you go. If they do not do as you have asked, you must go to the LGO following this. Send Recorded Delivery to the CEO of the Council, cc your MP and the Leader of the Opposition for the Council). IGNORE copying in B&S, we are dumping this fully in the lap of the council now, as you will see. It may need slight adjustment as I was writing largely from memory, so read and double check for spelling etc... I hope it's right! Again it is uploaded as a Word file for your ease in sending it at the end. Incidentally, the top bailiff specialist is NOT me lol!

[Insert Address]

[Insert Date]

Dear [Insert Name of Head of Council],

Your Ref: abcd1234

I am writing once again with regards to the above account. I apologise for writing to you in person, but you will understand your council is vicariously liable with Bristow and Sutor, your appointed Enforcement Agents, for this account. Should I fail to receive a satisfactory outcome from this letter, I will be taking my complaint to the Local Government Ombudsman for his ruling. As you will see below, there is little doubt in whose favour that ruling will go.

I do not write this letter lightly, but after seeking professional legal advice from a top bailiff specialist. I will not bore you with the details – I have enclosed copies of all previous correspondence. However, your employees and agents are leaving the council wide open to litigation in their incorrect assertions and misinterpretations regarding the law of distress.


Firstly, may I tackle the issue of being told I must deal with the your appointed Enforcement Agents over this issue. Nowhere in legislation is that prescribed, and council policies cannot override statute. The council is vicariously liable, and ultimately responsible for this matter. They are thus responsible for the inaccuracies in the reply below from Bristow and Sutor (B&S).

Secondly, may I address the issue of the communication from your council dated [Insert Date] (copy attached). This quite clearly states that:

Council tax for the year 2009 / 10 [insert other years as appropriate] for which a Liability Order was issued has been paid.

Bailiff fees for Council Tax debts are paid to the bailiffs before the Council receives its money. Thus, if you have written to me stating the Council Tax has been paid, so too must the bailiff fees have been paid. With respect, if the council has a contract with B&S which allows for different arrangements over payment, this is a contract between you and B&S, not one to which I am party. My liability is thus discharged in full.

So let us now address the detail, over which I have sought professional legal advice. Miss Lostitch stated:

Your assumption that a levy can be abandoned after a period exceeding 5 months between visits is incorrect. To clarify once goods are seized the levy will remain valid until the outstanding debt including costs is paid in full.

This is not correct. In his book, ‘Law of Seizure of Goods – Debtor’s Rights and Remedies' (John Kruse), the issue of abandonment is addressed, and case law clearly states that the assertion above is wrong (Jones v Biernstein [1900] 1 QB 100). After a period in excess of six months, it would be very hard for you to argue any intention to remain in possession. The levy had clearly been abandoned (please see next point regarding this also).

Next:

The van/removal fee was charged as the bailiff attended with the intention of removing goods or collecting the outstanding balance. We must point out that when a bailiff is instructed to collect the full balance they are also legally entitled to re levy and remove other items in which a van would be necessary.

Again this is clearly incorrect. I refer you to the Local Government Ombudsman’s Report on the LB of Ealing. Although dated 1997, my legal counsel has checked directly with the LGO that this ruling is still good. It is, save the fee in section 34. The report states in sections 32 – 35:

32. The Secretary of the Certificated Bailiffs Association says that where there has been no levy there is, in his view, no doubt that a van charge cannot be made.

33. The Head of Revenue at the Chartered Institute of Public Finance and Accountancy also says that in his view the law is quite clear, and that van charges cannot be made unless distress has first been levied.

34. The Department of the Environment says it does not believe that there can be any interpretation of the regulations other than that no charge can be made for a van unless distress has been levied. Any charges for visits when distress has not been levied are limited to £27.50 for two visits.

35.The Council initially took the view that the bailiffs could charge for attendance with a vehicle even if distress had not been levied, but now agrees that no charge can be made for a van unless distress has been levied.

The case here is clear. You can see for yourself, and indeed check with the LGO for yourself, how they would rule. The van fee should not have been charged.

Returning to the response and the comment about re-levying, one has to consider how the LGO would view this statement. Why re-levy if you claim a levy is already in existence? If re-levying, then the original levy is confirmed as abandoned, and the bailiff has no idea the size of vehicle needed to remove any goods levied should a further levy take place. This is why van fees are NOT chargeable before distress has been levied. If they were indeed attending to remove the abandoned levy, how did they expect to fit my car in a van? Your argument here is senseless.

Finally, B&S state:

Documents will be sent to you by post to confirm that the bailiff visits took place however at this stage we feel that we have made our position clear therefore we will have no alternative but to continue recovery action for the outstanding balance of £338.50.

We trust this clarifies our position.

Yours faithfully,

Miss C Lostitch

I have already addressed this point. The council has confirmed the Council Tax has been paid. This could not be the case if the accompanying fees had not been paid, as they are paid first. Any contractual agreement between your Council and B&S does not include me. I have not entered any such contract with you.

In light of the above, I put you to strict proof that everything claimed on behalf of the Council by Miss Lostitch, representing your appointed Enforcement Agents, B&S, is correct. If you insist on stating this, then I will go to the LGO and let them rule on the matter. This does not preclude further criminal action against the council for Fraud by Misrepresentation (see the Government Guidelines, “Council Tax - Guidance to local councils on good practice in the collection of Council Tax arrears (June 2013)." I quote:

Local Authorities should remain prepared to deal directly with individuals at any point. It is perfectly within their gift to call action back from the bailiffs at any time and where there is a case to do so they should consider such action.

and:

Where bill payers get in contact with the Local Authority directly, concerns should be investigated properly, not simply referred back to the bailiff.

and:

Local Authorities remain responsible for the action of contractors……………. The Government consider that any fraudulent practices should be reported to the police as a criminal offence under the Fraud Act.

In resolution I would ask you reply confirming all bailiff fees are cleared, and all years’ Council Tax and any accompanying fees, prior to the current tax year, have been discharged in full. I would ask for this response within 14 calendar days of the date of this letter. Failure to do so will result in the matter being passed to the LGO, and further I reserve the right to pursue criminal proceedings against the Council following the LGO ruling.

I trust this sets out my position very clearly,



Yours sincerely,





Print Name
cc. Those mentioned at start of post
Enclosed: Copies of ALL previous correspondence.

I love this one!:wub: