EA Action and Attachment of Earnings

Re: EA Action and Attachment of Earnings

Just reading that thread, I notice in post #3, the opening sentence from Bailiff Advice is:

"To clarify the position. At this present time......bailiff fees cannot be added to Council Tax Attachment of Earnings Orders."


This opinion appears to be exactly the opposite to your own, so I would say categorically that you are on your own with your opinion.

It s quite possible we dissagree on many things, it is an informative thread for instance further down BA says

My 'personal' opinion (and it is only that) is that the [amendment made under Schedule 13 of TCE 2007 (item 105) to the Local Government Finance Act 1992 cannot be ignored given that it is an amendment to 'primary' legislation and Parliament's intention is therefore clear in that fees should be applied.

We do agree on this

Edit so no I am not alone in this opinion

Re: EA Action and Attachment of Earnings

This is the primary legslation

(1)

Regulations under paragraph 1(1) above may provide that where a magistrates’ court has made a liability order against a person (“the debtor”) and the debtor is an individual—

(a)

the authority concerned may make an order (an “attachment of earnings order”) to secure the payment of [F1the appropriate amount]F1 ;

(b)

such an order shall be expressed to be directed to a person who has the debtor in his employment, and shall operate as an instruction to such a person to make deductions from the debtor’s earnings and to pay the amounts deducted to the authority;

(c)

the authority may serve a copy of the order on a person who appears to the authority to have the debtor in his employment; and

(d)

a person who has the debtor in his employment shall comply with the order if a copy of it is served on him.

[F2(1A)

For the purposes of this paragraph the appropriate amount is the aggregate of—

(a)

any outstanding sum which is or forms part of the amount in respect of which the liability order was made; and

(b)

where the authority concerned has sought to levy an amount by distress and sale of the debtor’s goods under provision included by virtue of paragraph 7 below and the person making the distress has reported that he was unable (for whatever reason) to find any or sufficient goods of the debtor on which to levy the amount—

(i)

such sum as is referred to in sub-paragraph (2)(b) of that paragraph, and

(ii)

if the authority has applied for the issue of a warrant committing the debtor to prison under provision included by virtue of paragraph 8 below, a sum (of a prescribed amount or an amount determined in accordance with prescribed rules) in respect of the costs of the application.

This is what enables the council tax enforcment regulations. This is and has always been in place it has not been repealed. This is what is enabled by legislation.

All that was repealed was the definition of "appropriate amount".

This is now defined within the legislation rather than within the regulation itself. See my previous post

If you read the opening line, you should hopefully realise where you are going wrong. Everything that follows the opening line is not mandatory. It is not even permitting the inclusion of fees.

All that is being done, is the providing of the facility to include fees by introducing it into regulations. It does not say that authorities MAY include fees, it is saying that regulations May allow for them to be included.

The amendment to reg 37 back in 2004 made this inclusion possible but it was repealed last year, so we are back in a position where fees may not be included.

Re: EA Action and Attachment of Earnings

Just to address the point that this is just my opinion bailiff advice states the situation much more eloquently and in far fewer words in post 11 here

http://www.consumeractiongroup.co.uk........An-update

Just reading that thread, I notice in post #3, the opening sentence from Bailiff Advice is:

"To clarify the position. At this present time......bailiff fees cannot be added to Council Tax Attachment of Earnings Orders."


This opinion appears to be exactly the opposite to your own, so I would say categorically that you are on your own with your opinion.

Re: EA Action and Attachment of Earnings

Well I'm lost again, do AOE's bought by the EA's following failed enforcement have the EA's fees (the £75 etc) included within them or not ?

Yes I think it is pretty safe to say that they do, otherwise all the money they got would go back to the authorities and they would not get paid. I cant see an EA going to the trouble if they were not going to see any fees.

The issue is really in what happens to accounts which are passed back to the authority after an unsuccessful enforcement action.

Re: EA Action and Attachment of Earnings

That still seems like opinion to me, and it certainly doesn't say the MOJ agreed there was an error. I don't think they would ever admit to an 'error' and Government is forever making amendments.

Seems to me the 2004 amendments created the 'error', for want of a better word, and the more recent amendments has rectified it. How could it ever be acceptable for a council administered AOE to include fees for a third party that has no role in that AOE?

Well they do, and for precisely the reasons I have stated.
.

[Big Al]

Re: EA Action and Attachment of Earnings

Well I'm lost again, do AOE's bought by the EA's following failed enforcement have the EA's fees (the £75 etc) included within them or not ?

No they don't, and all LA's contacted agree.

[Big Al]

Re: EA Action and Attachment of Earnings

That still seems like opinion to me, and it certainly doesn't say the MOJ agreed there was an error. I don't think they would ever admit to an 'error' and Government is forever making amendments.

Seems to me the 2004 amendments created the 'error', for want of a better word, and the more recent amendments has rectified it. How could it ever be acceptable for a council administered AOE to include fees for a third party that has no role in that AOE?

[Amethyst]

Re: EA Action and Attachment of Earnings

Well I'm lost again, do AOE's bought by the EA's following failed enforcement have the EA's fees (the £75 etc) included within them or not ?

Re: EA Action and Attachment of Earnings

I think it is perhaps you who are failing to understand.

There was an error initially when the act was drafted. Before the new regulations, fees were due to the authority, as it was they who were authorized to levy distress, when the TCE was introduced this changed. Schedule 12 entitled distress to be levied by the EA and for them to generate there own fees. The error was that there was no facility for the authority to receive fees when an enforcement power had ended, because of this separation.

The original amendment was introduced to the council tax regs to remedy this, however it was found that this conflicted with the other requirements of the regulations, namely section 52 and section 17 of the taking control of goods regs, so it had to be removed.
This however was remedied by including the facility in the source legislation via the schedule 13 amendments to the LGFA, this permits the adding of fees. As said any statute will over ride any provision in secondary legislation.
As seen many authorities have yet to catch up with this, and Tameside were still at the situation where they considered the initial amendments to be standing.
This was corrected, however there are the further modifications still to be taken into account.

aaaa

[Big Al]

Re: EA Action and Attachment of Earnings

Yes we both say there was and so do the MOJ

I explained this in an earlier post.

I must have missed it. Would you be kind and lead me to it.

Re: EA Action and Attachment of Earnings

Bailiff Advice says there was an 'error' in the legislation - is that opinion? Why did it take 12 years to amend that 'error', and why is the position now back to fees not being added if this was an 'error'?

Yes we both say there was and so do the MOJ

I explained this in an earlier post.

[Big Al]

Re: EA Action and Attachment of Earnings

Bailiff Advice says there was an 'error' in the legislation - is that opinion? Why did it take 12 years to amend that 'error', and why is the position now back to fees not being added if this was an 'error'?

Re: EA Action and Attachment of Earnings

Just to address the point that this is just my opinion bailiff advice states the situation much more eloquently and in far fewer words in post 11 here

http://www.consumeractiongroup.co.uk........An-update

Re: EA Action and Attachment of Earnings

I've had a good read of this thread; too much to quote and counter so I'll just make comments.

Tameside got it wrong - they were relying on repealed legislation, and once made aware changed their stance. No argument there.

They had used the EA to collect 137 AOE; were fees included? Probably, because they believed they could do so, and the EA wasn't going to argue. If they have done, those AOE's need to have the fees removed. A FoI should be sent to clarify this.

At present, no matter what some may argue (no, scrap that, not some, just andy58 :thumb, the swathe of FoI's show that fees cannot be added to a AOE, and at times the relevant legislation has been quoted. No LA has contradicted this (save Tameside). The LA's are clear in this position, which is in contrast to the position of direct debt payments.

As L.Bizzy alluded to, there can never have been parliamentary intention to allow an EA to return a case after they've failed to enforce, then allow the LA to collect their fees for them. That would be payment for failure.

Only one enforcement power can take place at any one time; an AOE would, I feel, be subject to a small admin fee to set up which can reasonably be added to the AOE. It would therefore be illegal to add EA fees on top of this, as this would effectively mean 2 enforcement powers are being paid for.

Andy58 relies on 'the amount outstanding' when the AOE is made. As this is usually after the EA has returned the warrant, the amount outstanding at that point would not include fees, as they have been removed.

I feel that the 'contracting out' of AOE cannot include fees, again due to only one enforcement power being used at one time. By all means, if the EA want to apply and administer the AOE, let them; just don't expect fees to be included.

Yes thanks for that

Re: EA Action and Attachment of Earnings

This is the primary legslation

(1)

Regulations under paragraph 1(1) above may provide that where a magistrates’ court has made a liability order against a person (“the debtor”) and the debtor is an individual—

(a)

the authority concerned may make an order (an “attachment of earnings order”) to secure the payment of [F1the appropriate amount]F1 ;

(b)

such an order shall be expressed to be directed to a person who has the debtor in his employment, and shall operate as an instruction to such a person to make deductions from the debtor’s earnings and to pay the amounts deducted to the authority;

(c)

the authority may serve a copy of the order on a person who appears to the authority to have the debtor in his employment; and

(d)

a person who has the debtor in his employment shall comply with the order if a copy of it is served on him.

[F2(1A)

For the purposes of this paragraph the appropriate amount is the aggregate of—

(a)

any outstanding sum which is or forms part of the amount in respect of which the liability order was made; and

(b)

where the authority concerned has sought to levy an amount by distress and sale of the debtor’s goods under provision included by virtue of paragraph 7 below and the person making the distress has reported that he was unable (for whatever reason) to find any or sufficient goods of the debtor on which to levy the amount—

(i)

such sum as is referred to in sub-paragraph (2)(b) of that paragraph, and

(ii)

if the authority has applied for the issue of a warrant committing the debtor to prison under provision included by virtue of paragraph 8 below, a sum (of a prescribed amount or an amount determined in accordance with prescribed rules) in respect of the costs of the application.

This is what enables the council tax enforcment regulations. This is and has always been in place it has not been repealed. This is what is enabled by legislation.

All that was repealed was the definition of "appropriate amount".

This is now defined within the legislation rather than within the regulation itself. See my previous post