EA Action and Attachment of Earnings

Re: EA Action and Attachment of Earnings

Here is the amendment to the statute
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”;

(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.

It seems pretty straight forward to me, and was the same requirement included previously in the council tax regs, it has been lifted form there and inserted in the source legislation.

[Amethyst]

Re: EA Action and Attachment of Earnings

Okay, and if you have concluded, and Tameside have come to the same conclusion,( 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.) ie. that fees may not be added to the AOE, and fees have been added, is action going to be taken to have those fees removed from the AOEs ? That is probably the question I'd be asking them.

Re: EA Action and Attachment of Earnings

How many of those have had fees included in the AOE ?

Well the question posed was how many have been issued by EAs under the contracting out provisions.
If this answer refers to this and the EA issued them I would expect all of them, as I cannot see the EA doing this without payment.

Re: EA Action and Attachment of Earnings

Incidentally this a reason why the criminal procedure rules frequently quoted elsewhere, in advice given to people are irrelevant, because they have been over ridden by the statute in the form of the TCE and have been for some time.

Re: EA Action and Attachment of Earnings

Try to look at it like this:

Sch 12 is the procedure, regulations are what are adhered to in order to carry out the procedure.

The LGF Act, again is the procedure to be followed, regulations are what must be adhered to in order to carry out the procedure.

You need to understand that the 2 are entirely different entities, working in tandam with each other. It is not a case of 1 over diding the other. There would be no point having regulations and everything would be merely included within the primary legislation. I think that this is what is confusing you.

Yes and they are both statute,they both have equal standing, schedule 13 is part of the TCE( statute), this is why it can amend the lgfa.

I am not saying taht one of these over rides the other, just that either overrides secondary legislation, whatever its source.

[Amethyst]

Re: EA Action and Attachment of Earnings

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

How many of those have had fees included in the AOE ?

Re: EA Action and Attachment of Earnings

It was actually me who corrected it. You were claiming fees could be added, on the strength of Thamesides rubbish. It was only after you had read my comments that you changed your stance. No big deal. The important thing is that you realise they were wrong.

No if you look on the FOI request you will see that I questioned the initial response and they corrected based on that information.
I am just in search of the correct situation

https://www.whatdotheyknow.com/reque...utgoing-412337

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.

Yours sincerely,

david browning

Re: EA Action and Attachment of Earnings

Try to look at it like this:

Sch 12 is the procedure, regulations are what are adhered to in order to carry out the procedure.

The LGF Act, again is the procedure to be followed, regulations are what must be adhered to in order to carry out the procedure.

You need to understand that the 2 are entirely different entities, working in tandam with each other. It is not a case of 1 over diding the other. There would be no point having regulations and everything would be merely included within the primary legislation. I think that this is what is confusing you.

Re: EA Action and Attachment of Earnings

As said this matter is far from resolved.
and even if I am wrong, and for some reason the amendment to source legislation did not have the effect intended, there will not be a loophole here, at least not one that exists for long, as said this was an error in the initial drafting of the legislation, errors will be rectified.

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.

I am afraid you have a basic misunderstanding of the structure of regulations and statute, regulations do not enable statue it is the other way around.

The amendment does not say that regulations may be made to enable the charging of fees.

Re: EA Action and Attachment of Earnings

It was actually me who corrected it. You were claiming fees could be added, on the strength of Thamesides rubbish. It was only after you had read my comments that you changed your stance. No big deal. The important thing is that you realise they were wrong.

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.

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.

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

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.