EA Action and Attachment of Earnings

[Guest]

Re: EA Action and Attachment of Earnings

I think that this bit - '' 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—'' they should get rid of the ''for whatever reason'' and add in a requirement for some sort of declaration that they have made all reasonable attempts ? but then of course that would put more pressure on the debtor ?

The enforcment stage fee will be due in any case once the period is up and the EA makes the call.(fees are due at commencement of stages not completion) So in practice ti will be the first two stage fees which will be added.

[Guest]

Re: EA Action and Attachment of Earnings

I would appreciate sight of what regulation you are relying on that states fees die. I donot believe that reg 17 of the fees regs covers this unless I am missing something?

http://www.legislation.gov.uk/uksi/2014/1/made

Fees and disbursements not recoverable where enforcement process ceases

17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.

[Guest]

Re: EA Action and Attachment of Earnings

Yes but the power becomes unexercisable when the debt is returned. The fees accrued up to that point are perfectly legitimate.

17 (1) appears to me to be referring to any enforcement action taken AFTER the debt has been returned

[Guest]

Re: EA Action and Attachment of Earnings

Sorry yes it appears you were missing something

[Guest]

Re: EA Action and Attachment of Earnings

Yes but the power becomes unexercisable when the debt is returned. The fees accrued up to that point are perfectly legitimate.

17 (1) appears to me to be referring to any enforcement action taken AFTER the debt has been returned

Ni apparently not it refers to all fees up until that point. I have had clarification on this point from the MOJ.
This is one of the reasons there was a problem with applying fees not only on attachment of earnings .

This is th only reason for saying that fees die when accounts are returned, unless you want to say that they don't ?

[Guest]

Re: EA Action and Attachment of Earnings

Thanks andy however that's not particularly clear ( to me anyway)

Maybe someone can put the relevant amendments in place in the LGFA and post it here because as far as I can see now, we have a definitive view that costs can be added to the AOE's and Tameside council saying they can't ?

That is what I did ?

[Guest]

Re: EA Action and Attachment of Earnings

Of course I would prefer the fees to die. If what you are saying is correct then you have your explanation as to why they cannot be added to aoe's.There is no point debating this further. The primary legislation doesn't stipulate anything regarding aoe's, it merely provides for what may and what must be included in regulations.Fees may not be added to aoe's. In order for them to be added just if bailiffs are collecting, it would become very confusing. I'm more confident now, than before that they won't be added in the future. We now need to see what has been going on with Thamesides aoe's

[Guest]

Re: EA Action and Attachment of Earnings

The primary legislation states that fees cn be added, it would be strange indeed if this was not implemented.

As said this was an error and it will be made clear in the months to come, rest assured these fees will be included in AOEs in the future if they are not there already, for one thing it makes no sense that they should not be and for another it seems strange that the statutory provision should be included and not used.

[Guest]

Re: EA Action and Attachment of Earnings

It also has to be considered that the council tax enforcment regulations and the ability to create attachment of earnings, was never repealed, the only thing that was removed was the ability to add fees, this was removed from the definition of the "applicable amount".
The statute introduces the amended definition of this to re introduce the fees , it does not alter the rest of the regulation.

(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 a person authorised to act under the power conferred by section 14(4) (power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007) has reported to the authority concerned that he was unable (for whatever reason) to find sufficient goods of the debtor to pay the amount outstanding—

(i)

the amount outstanding at the time when the attachment of earnings order is made, and”;

[Guest]

Re: EA Action and Attachment of Earnings

This is where you're going wrong. The primary legislation does NOT state that fees can be added. It states that regulations may provide for them to be added.

Why do you think they amended reg37 back in 2004? They did so because they wanted fees to be added. If the primary legislation allowed for this as you mistakingly believe, there would have been no real need to go to the trouble of amending a regulation, just to include the exact same thing.

Anyway-I can't say any more. If you're still not convinced then theres little more that I can do to make you change your mind. I note others, more closer to you have also stated recently that fees cannot be added. If you don't want to listen to me, perhaps you'll loisten to them?

As it stands, to continue going round in circles on this thread would appear to be futile.

[Big Al]

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.

[Guest]

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

[Guest]

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

[Guest]

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

[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'?