EA Action and Attachment of Earnings

[Guest]

The response to the following question has just been posted on the what do they know website

https://www.whatdotheyknow.com/reque...FOI%203463.pdf

Do your appointed enforcement agencies (bailiffs) have the authority to initiate attachment
of earning procedures on accounts passed to them for enforcement, or do they have to
pass them back to the authority in order for them to take this alternative enforcement
method.

If the EA do have this facility is it true that the amount of the order will include the sum
remaining on the order plus any fees due to them when the AOE is applied (the amount
outstanding)

If the bailiff passes the account back to the authority because the enforcement was
unsuccessful and subsequently the authority issues an attachment of earnings, will the sum
applied to the AOE include the bailiff fees, or will it just be for the amount due on the
original order

The response is

1. The Local Authorities (contracting out of billing, collection and Enforcement Functions
Order) enables Authorities to authorise a contractor to exercise certain functions in
connection with the collection and enforcement of Council Tax. Included among these
functions are those of making an attachment of earnings order with a view to securing
payment of Council Tax and serving it on a person who appears to have a debtor in his
employment.

2. Regulation 37 of the Council Tax Administration and Enforcement regulations 1992 (as
amended) permits the recovery of the balance outstanding under any liability order plus
accrued bailiff charges under schedule 5 and any accrued costs of committal proceedings.
The Enforcement Agents therefore have the statutory powers to recover fees accrued
through an attachment of earnings order

3. If Enforcement Agent fees remain outstanding then the Authority may recover any fees due
under the legislation detailed at point 2.

[Guest]

Re: EA Action and Attachment of Earnings

In case people have difficulty locating the legislation as quoted as itis an amendment to the regs here (my emphasis)(which is what Tameide say)

http://www.legislation.gov.uk/uksi/2...ulation/6/made

In regulation 37—
(a)in paragraph (1)(1) for “any outstanding sum which is or forms part of the amount in respect of which the liability order was made” substitute “the appropriate amount”;
(b)after paragraph (1) insert—
“(1A) For the purposes of this regulation 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 regulation 45 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)a sum determined in accordance with Schedule 5 in respect of charges connected with the distress, and
(ii)if the authority has applied for the issue of a warrant committing the debtor to prison in accordance with regulation 47, the authority’s reasonable costs incurred up to the time of the making of the order under regulation 37, in making one or more of the applications referred to in Schedule 6, but not exceeding the amount specified for that application in Schedule 6.”[/B]

[Guest]

Re: EA Action and Attachment of Earnings

The next step of course is figuring why they have quoted the position pre April this year.

The reason is that the situation remains the same. although the consequential amendment regulation repeals subsection b of the amendments.

Because the same facility is added to the source legislation, the Local government and finance act.
Schedule 13 of the tce amends this ACT to give the same facility

http://www.legislation.gov.uk/ukpga/2007/15/schedule/13

107(1)Schedule 4 (enforcement: England and Wales) is amended as follows.
(2)In paragraph 1(1) and (2) after “recovery” insert “ , otherwise than under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods), ”.
(3)In paragraph 5 (attachment of earnings etc)—
(a)in sub-paragraph (1A)(a) for “; and” substitute “ (unless paragraph (b) applies); ”;
(b)in sub-paragraph (1A)(b) for sub-paragraph (i) and the words before it substitute—
“(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”;

This of course is now even more binding as it is legislation rather than a SI

[Guest]

Re: EA Action and Attachment of Earnings

This should put to bed the idea that a fee can be avoided by simply ignoring the bailiff, that is if an attachment of earnings order is possible at least.

[Guest]

Re: EA Action and Attachment of Earnings

In order to seek further clarificatin of the current regulatory position regarding this, i have just sent the following tp Tameside

Dear Freedom Of Information Requests,

Many thanks for your prompt response to my query, I have a few
points which I would like to raise in reference to your reply.

In point 1 you state that the regulations permit the contracting
out of the issuance of attachment of earnings orders, would it be
possible for you to supply the number of orders imitated by EAs
this year (from April 2014 to date)

In point 2 you state that the ability to add fees to the order is
contained within section 37 of the of the Council Tax
Administration and Enforcement regulations 1992 (as amended), the
section you refer to (subsection b) was withdrawn when the TCE was
in introduced In April this year.( by the consequential amendment
regulations)
I am aware that there is some amendment to the Local government
finance act via section 107 of schedule 13 of the TCE, however I
would like some confirmation of the current regulatory situation
regarding this.

[bluebottle]

Re: EA Action and Attachment of Earnings

In order to seek further clarificatin of the current regulatory position regarding this, i have just sent the following tp Tameside

Dear Freedom Of Information Requests,

Many thanks for your prompt response to my query, I have a few
points which I would like to raise in reference to your reply.

In point 1 you state that the regulations permit the contracting
out of the issuance of attachment of earnings orders, would it be
possible for you to supply the number of orders imitated by EAs
this year (from April 2014 to date)

In point 2 you state that the ability to add fees to the order is
contained within section 37 of the of the Council Tax
Administration and Enforcement regulations 1992 (as amended), the
section you refer to (subsection b) was withdrawn when the TCE was
in introduced In April this year.( by the consequential amendment
regulations)
I am aware that there is some amendment to the Local government
finance act via section 107 of schedule 13 of the TCE, however I
would like some confirmation of the current regulatory situation
regarding this.

I am going to watch this thread with interest.

[bizzybob]

Re: EA Action and Attachment of Earnings

It will be very interesting.

[Guest]

Re: EA Action and Attachment of Earnings

I have an idea that the various authorities are still getting to grips with the new regulations, and many are still relying on the old regime, this I think is the case with Tameside. Having said that it does indicate that they were adding fees to AoE before April and probably are still doing so even if they ate not applying the new regs(that is if the new regs make any difference).

Personally I am of the opinion that the new regulations give the same powers to add the fees as the old ones did, the mechanism is simply that the ability to charge fees has been passed on to the source legislation as said, i suspect this will take a little while to sink in.

It is important to get this right, as the advice being given to ignore EAs if possible and let the account be passed back to the authority in order to avoid fees pretty well depends on it.

[Guest]

Re: EA Action and Attachment of Earnings

(b)

in sub-paragraph (1A)(b) for sub-paragraph (i) and the words before it substitute—

“(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”;

(c)

at the end insert—

“(9)

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.”

Yes there really is no other way that this can be interpreted, also the requirement is contained within the statute , although regulations are of course binding on the parties the statute is even more so.
I wonder if this is why it has been changed, in any case it is not something the particular authority has any control over they must add the fees, as the section says the "amount outstanding" must be allocated to the order, this is defined in the same section as including fees, really straight forward.

[jetsetpet]

Re: EA Action and Attachment of Earnings

"The amount outstanding at the time when the attachment of earnings order is made" would depend on whether a power of enforcement is active or not, surely?

[Guest]

Re: EA Action and Attachment of Earnings

"The amount outstanding at the time when the attachment of earnings order is made" would depend on whether a power of enforcement is active or not, surely?

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.

At least that its what the legislation and the response form Tameside say.

[jetsetpet]

Re: EA Action and Attachment of Earnings

I thought Tameside were relying on repealed legislation?

[jetsetpet]

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.

[Guest]

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.

[jetsetpet]

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.