EA Action and Attachment of Earnings

Re: EA Action and Attachment of Earnings

Oh some excellent points by the way, and ones I had not considered.

Re: EA Action and Attachment of Earnings

Andy,

That is brilliant, and by far the clearest I've seen it set out to date (trusting everything you've cited is 100% accurate). This then brings us back to this sticky bit debated previously of what are proceeds and what is the amount outstanding?



50(1)Proceeds from the exercise of an enforcement power must be used to pay the amount outstanding.

(2)Proceeds are any of these—

(a)proceeds of sale or disposal of controlled goods;

(b)money taken in exercise of the power, if paragraph 37(1) does not apply to it.

(3)The amount outstanding is the sum of these—

(a)the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);

(b)any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).


So what does paragraph 62 (costs) actually say?

Costs

62(1)Regulations may make provision for the recovery by any person from the debtor of amounts in respect of costs of enforcement-related services.

(2)The regulations may provide for recovery to be out of proceeds or otherwise.

(3)The amount recoverable under the regulations in any case is to be determined by or under the regulations.

(4)The regulations may in particular provide for the amount, if disputed, to be assessed in accordance with rules of court.

(5)“Enforcement-related services” means anything done under or in connection with an enforcement power, or in connection with obtaining an enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.



I think, even if one disagrees over proceeds those two words, "or otherwise" are highly significant.

Also (4) gives it over to the court to make the decision if disputed - I suspect we know which way they would rule, though it stands, of course, to be tested.



So much remains to be firmed up still. What we are unpicking here, and others are doing elsewhere arriving at the same or different conclusions is effectively doing the MOJ's work for them. In my opinion, the MOJ would benefit from coming and reading these boards (both sides of the argument) so they can ensure that any amendments made remove, as far as possible, any further doubt or conflict relating to this issue.

I agree with your interpretation, but equally, I can see quite easily how something different could be argued. As I said on CAG yesterday, given the volatility of this area and its clearly demonstrated ability to cause huge upset, I believe it is best left for the relevant people to agree to differ, stop making personal comments and continue on the basis that we simply have differing opinions.

Obviously it is not in my gift to achieve this, but I can voice what I think would be best for all. The sides are so diametrically opposed that agreement will never be achieved until things are clarified by the powers that be. It's not a case of trying to find arguments for or against paying bailiff fees as far as I'm concerned, it's about getting the law correct and acting in accordance with it. Where bailiff fees can be legitimately avoided without exacerbating things for the debtor, they should be avoided.

Just my two pennies worth. mashappy:

Yes so do I, and this is why the matter should be capable of being discussed, incidentally even if there was a loophole here, due to the number of FOI requests you can be sure the MOJ would be fully aware of it by now, and it would not be there for long, so those who seek to depend on it really are doing themselves no favours.

But as said this is my opinion(and just mine), I think that the reason this provision was moved from secondary legislation to amend primary statue is because parliament is of the opinion that fees should be added, otherwise it would not say "amount outstanding" it would say the amount of the liability order.
Now I quite prepared to be proven wrong and I was looking forward to a informative debate on the subject, however as usual this seems to be out of the question.

Re: EA Action and Attachment of Earnings

It'll end up going round in circles. I the amount outstanding for the purposes of a CTAEO will be dependant on what stage the LO is at, you don't.

I cannot see how Scedule 12 50 (3), a schedule that is about taking control of goods, is applied to an AEO, you can.

I cannot see how the amount outstanding can include EA fees if no fees have yet to be applied, you can.

You are correct when there are no fees(ie before the order was farmed out) then they cannot be added.

There is a valid argument against these fees being added, it is shame that there is no one seems to be capable of presenting it without point scoring or abuse.

All we should be doing here is finding out how new regulation works in practice.

Re: EA Action and Attachment of Earnings

Andy,

That is brilliant, and by far the clearest I've seen it set out to date (trusting everything you've cited is 100% accurate). This then brings us back to this sticky bit debated previously of what are proceeds and what is the amount outstanding?



50(1)Proceeds from the exercise of an enforcement power must be used to pay the amount outstanding.

(2)Proceeds are any of these—

(a)proceeds of sale or disposal of controlled goods;

(b)money taken in exercise of the power, if paragraph 37(1) does not apply to it.

(3)The amount outstanding is the sum of these—

(a)the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);

(b)any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).


So what does paragraph 62 (costs) actually say?

Costs

62(1)Regulations may make provision for the recovery by any person from the debtor of amounts in respect of costs of enforcement-related services.

(2)The regulations may provide for recovery to be out of proceeds or otherwise.

(3)The amount recoverable under the regulations in any case is to be determined by or under the regulations.

(4)The regulations may in particular provide for the amount, if disputed, to be assessed in accordance with rules of court.

(5)“Enforcement-related services” means anything done under or in connection with an enforcement power, or in connection with obtaining an enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.



I think, even if one disagrees over proceeds those two words, "or otherwise" are highly significant.

Also (4) gives it over to the court to make the decision if disputed - I suspect we know which way they would rule, though it stands, of course, to be tested.



So much remains to be firmed up still. What we are unpicking here, and others are doing elsewhere arriving at the same or different conclusions is effectively doing the MOJ's work for them. In my opinion, the MOJ would benefit from coming and reading these boards (both sides of the argument) so they can ensure that any amendments made remove, as far as possible, any further doubt or conflict relating to this issue.

I agree with your interpretation, but equally, I can see quite easily how something different could be argued. As I said on CAG yesterday, given the volatility of this area and its clearly demonstrated ability to cause huge upset, I believe it is best left for the relevant people to agree to differ, stop making personal comments and continue on the basis that we simply have differing opinions.

Obviously it is not in my gift to achieve this, but I can voice what I think would be best for all. The sides are so diametrically opposed that agreement will never be achieved until things are clarified by the powers that be. It's not a case of trying to find arguments for or against paying bailiff fees as far as I'm concerned, it's about getting the law correct and acting in accordance with it. Where bailiff fees can be legitimately avoided without exacerbating things for the debtor, they should be avoided.

Just my two pennies worth. mashappy:

Re: EA Action and Attachment of Earnings

It'll end up going round in circles. I the amount outstanding for the purposes of a CTAEO will be dependant on what stage the LO is at, you don't.

I cannot see how Scedule 12 50 (3), a schedule that is about taking control of goods, is applied to an AEO, you can.

I cannot see how the amount outstanding can include EA fees if no fees have yet to be applied, you can.

Re: EA Action and Attachment of Earnings

Of course I am open to any sensible logical argument which would disprove what the legislations says here.

Re: EA Action and Attachment of Earnings

(1)

This is from the LGFA sched 4 , I have added the amendments from sched 13 TCE and highlighted the parts which should illustrate the answer to any questions raised so far.

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 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—

and”;

“(In this paragraph “the amount outstanding” has the meaning given by paragraph 50(3) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007(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.]

Re: EA Action and Attachment of Earnings

To clarify, the "amount outstanding" will be dependant on the amount due under the liability order plus the fees and charges due when the enforcement is abandoned and the AOE is issued.

Re: EA Action and Attachment of Earnings

The "order it refers to is the attachment of earnings order.

The amount outstanding when the order is made, is when the attachment of earning order is made, this will be the amount outstanding as defined in scedule 12 section 50(3) as stated in the amendment to the LGFA ?

Surely 'the amount outstanding at the time the order is made', not 'the amount outstanding at any point you choose'? It must be what is owed when the order is made. Section 50(3) certainly would not appropriate if the AEO was the first enforcement option as no EA fees could possibly have been added yet.

Also section 50(3) is part of schedule 12 which is only concerned with taking control of goods, not AEO.

Re: EA Action and Attachment of Earnings

It says the amount outstanding when the AOE is made. The AOE would be made after the unsuccessful action.

The "amount outstanding" is defined in the next paragraph as being section 50(3) of the tce which includes fees.

Re: EA Action and Attachment of Earnings

It can only mean what it says, "at the time when the AEO is made"; it can't mean any fee that is added at any stage, just what is due at the time of the order. Certainly no EA fees if the AEO is the first recovery option. If the EA is the first option, this must have ended before an AEO is sought.

It cannot have been anyone's intention to pay fees to an EA when they have failed to enforce.

Re: EA Action and Attachment of Earnings

What I mean is the AoE would be the amount on the liability order if it was applied for before the EA was instructed, so no fees would be added in that case.

If the EA had been instructed but had failed to enforce, they would return the warrant as nulla bona and their fees would be removed, as is accepted.

If an AoE was then applied for by the council, EA fees could not be added as they have been removed.

It is a fair point and one that needs some clarification, the enforcement power does end when the account is passed back to the authority.
However the the requirement is not dependant on an enforcement power, it is contained int the LGFA, the only mention of the TCE is to itemise the sum due, the power is contained within the LGFA not the TCE.

This is all very new and will I am sure be subject to much debate, hopefully the constructive variety.

Re: EA Action and Attachment of Earnings

Yes I would think so, but until the "amount outstanding" was not paid the enforcement power would still be active, if passed back it would be the amount outstanding which the authority would apply to the order.

What I mean is the AoE would be the amount on the liability order if it was applied for before the EA was instructed, so no fees would be added in that case.

If the EA had been instructed but had failed to enforce, they would return the warrant as nulla bona and their fees would be removed, as is accepted.

If an AoE was then applied for by the council, EA fees could not be added as they have been removed.

Re: EA Action and Attachment of Earnings

I thought Tameside were relying on repealed legislation?