EA Action and Attachment of Earnings

[Guest]

Re: EA Action and Attachment of Earnings

The situation is that an AOE may not include bailiff fees. This has been resolved.

People are expressing opinions on why this is the case, NOT opinions on whether fees may be added.

Primary legislation states that regulations may include fees. The regulations do not currently allow for fees to be included. This is not opinion, it is fact. Why fees cannot be added is irrelevant and should not really be of any concern to us.

There is a possibility that amendments may be made in order to enable these fees to be included, but that is for the future and we should cross that bridge when we come to it.

Currently, I believe that a debtor has the right to be made aware of every option available to him/her. Amongst these options, is the choice of refusing bailiff s entry (which everyone agrees is the best policy) and ensuring that a vehicle cannot be seized. If the debt is ultimately returned to the council, then fees may not be added to any subsequent AOE. We should also ensure that councils are adhering to legislation as we've already discovered at least one council who got it wrong.

I believe that if a debtor seeks advice upon receipt of a NOE, it would be wise to point the debtor towards paying the extra £75, to avoid all the hassle. If a debtor has multiple debts (and consequently multiple compliance fees), it may well be worth ensuring the debts are returned but for one single case, I would always advise to pay and agree a payment plan at the earliest opportunity. We can then help and advise, to ensure that this plan is reasonable and not punitive.

For the debtor who has incurred the enforcement fee, there is little to lose by continuing to refuse entry provided any vehicle is safe. For the single mum, with no car who is prepared to not deal with the bailiff then it is a no-brainer to avoid the £310 in fees if legally possible.

I agree that this is tough on the bailiff companies but on the whole they are "quids in" with the new regs. The fees have taken into account that in a small number of cases, these fees will not be collected.

[Guest]

Re: EA Action and Attachment of Earnings

If primary legislation permits something, there is no need for it to be permited in secondary legislation, and even if it was the statute would over ride it, secondary legislation has no power of its own, as I am sure you know.

As said this is your opinion, many of us think differently and it is yet to be resolved thoroughly. This can only done when further data is received.

[Guest]

Re: EA Action and Attachment of Earnings

Also it must be mentioned that if the error still exists which prevents fees being added it will not exist for long, personally I do not think there is any at least now, and the statute does permit the adding of these fees without any modification.

[Guest]

Re: EA Action and Attachment of Earnings

The primary legislation "permits" in as much that it states that regulations MAY, not that regulations MUST. The fact that regulations do not (currently) is sufficient for the fees not to be added. Of all the councils contacted thus far, only one (Thameside) failed to understand the regulations. To date 100% of these councils are stating that fees may not be added.

As I have previously stated, it is of no concern currently. Where it will be of concern is when existing contracts expire and councils are free to convert to in house operations. The Dorset group of councils have recently gone down this road.

Do you have any thoughts on LA's charging a £75 compliance fee for passing an account from 1 department to another? This is surely not within the spirit of Schedule 12?

[Guest]

Re: EA Action and Attachment of Earnings

The word "May" in legislation means that the party has the option to, so of course they can choose not to add fees if they wish.

The £75 thing probably needs another thread.

[Big Al]

Re: EA Action and Attachment of Earnings

Of all the councils contacted thus far, only one (Thameside) failed to understand the regulations. To date 100% of these councils are stating that fees may not be added.

I thought Tameside were relying on repealed legislation, and when this was brought to their attention, they rectified their mistake and agreed fee's couldn't be added?

[Amethyst]

Re: EA Action and Attachment of Earnings

Was any of this in writing from Tameside?

[Big Al]

Re: EA Action and Attachment of Earnings

Was any of this in writing from Tameside?

Post #40 on this thread

[Amethyst]

Re: EA Action and Attachment of Earnings

Thanking you xx

Here

Please see below my response to your further request:

Regulation 37 of the Council Tax (Administration and Enforcement) Regulations 1992 was
amended by Statutory Instrument 2014 number 600 as a consequence of the new taking control of
goods legislation.

As a result of this amendment Enforcement Agent charges can no longer be recovered under an
Attachment of Earnings Order. I can confirm that our existing Contractors are aware of this
regulation change.

Since 1 April 2014 Enforcement Agents have issued 137 Attachment of Earnings Orders on behalf
of the Council.

Please accept my apologies for the confusion caused by my earlier reply.

[Guest]

Re: EA Action and Attachment of Earnings

The word "May" in legislation means that the party has the option to, so of course they can choose not to add fees if they wish.

The £75 thing probably needs another thread.

You are still failing to understand. The primary legislation (the Act) is stating what MAY be included in regulations. As it stands, there is no inclusion to add bailiff fees to AOE's. Councils have no choice in the matter-They can not add fees to an AOE, even if they wanted to. They do not "choose" not to add fees, there is no provision at present allowing them to. The primary legislation is NOT stating that councils may add fees to AOE's, it is stating that regulations may allow for the provision to add them.

To simplify, have a look at the TC&E Act (Sch12 procedure). Paragraph 7 covers the NOE. It states what regulations MUST state, regarding what is covered in the notice. Regulations 6,7 & 8 of the TCG Regs then go on to state exactly what is asked for in the primary legislation. Where the Act states that regulations "may" include specific items, this means that it is not compulsory to do so, only that it is permissible to. Whether intentionally or otherwise, there is no provision in legislation to add fees to AOE's. The word "may" does not have a different meaning in legislation than anywhere else in the English language.

This thread has been put to bed-Fees cannot be added to AOE's. Councils do have legal experts who advise on procedures. They haven't just asked the girl on the front desk to determine the ins & outs of the Schedule 12 procedure. Surely you accept that they can't all be wrong? The only one that was, has now done a 180 degree turn and accepted that fees cannot be added.

[Guest]

Re: EA Action and Attachment of Earnings

I thought Tameside were relying on repealed legislation, and when this was brought to their attention, they rectified their mistake and agreed fee's couldn't be added?

Yes-Sorry, that was my point, clearly not very well put.

When the rubbish spouted by Thameside was published on the WWW, it was picked up immediately and corrected.

[Guest]

Re: EA Action and Attachment of Earnings

You are still failing to understand. The primary legislation (the Act) is stating what MAY be included in regulations. As it stands, there is no inclusion to add bailiff fees to AOE's. Councils have no choice in the matter-They can not add fees to an AOE, even if they wanted to. They do not "choose" not to add fees, there is no provision at present allowing them to. The primary legislation is NOT stating that councils may add fees to AOE's, it is stating that regulations may allow for the provision to add them.

To simplify, have a look at the TC&E Act (Sch12 procedure). Paragraph 7 covers the NOE. It states what regulations MUST state, regarding what is covered in the notice. Regulations 6,7 & 8 of the TCG Regs then go on to state exactly what is asked for in the primary legislation. Where the Act states that regulations "may" include specific items, this means that it is not compulsory to do so, only that it is permissible to. Whether intentionally or otherwise, there is no provision in legislation to add fees to AOE's. The word "may" does not have a different meaning in legislation than anywhere else in the English language.

This thread has been put to bed-Fees cannot be added to AOE's. Councils do have legal experts who advise on procedures. They haven't just asked the girl on the front desk to determine the ins & outs of the Schedule 12 procedure. Surely you accept that they can't all be wrong? The only one that was, has now done a 180 degree turn and accepted that fees cannot be added.

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.

[Guest]

Re: EA Action and Attachment of Earnings

There is some misunderstanding about the relationship between statute and regulations here I think.

Secondary legislation has no power of it own it draws its power from source legislation, this ability is made when there is a section in the source legislation which says something like, " registrations may be made to empower". this ability is not rendered by the word the single word "may".

The word "may" is used often in all legislation and along with "should" and "mus"t have very well defined meanings in statute

The modification does of course permit the addition of fees, as this provision over rides anything stated in regulation, this is why it was placed inn statute

[Guest]

Re: EA Action and Attachment of Earnings

Sch13 permits fees to be added PROVIDED that regulations allow for it. At present, they do not. I cannot put it any simpler.

The opinion that LA's are playing catch up, is just that, an opinion and one that I do not subscribe to. I am no fan of LA's however, they have got more right than you give them credit for.

[Guest]

Re: EA Action and Attachment of Earnings

Yes-Sorry, that was my point, clearly not very well put.

When the rubbish spouted by Thameside was published on the WWW, it was picked up immediately and corrected.

Sorry catching up, yes I corrected it, and it was not "rubbish" it was what tameside believed to be the case because they were unaware of the subsequent withdrawal of the section in the council tax regs, currently they seem to be unaware of the amendment to the LGFA in the same manner. This will be the case with many authorities however it will be remedied in due course.