COUNSEL OPINION (AND RESPONSE) TO LAWFULNESS OF CHARGING MULTIPLE ENFORCEMENT FEES ON SAME VISIT

OPINION

A local authority allowing its bailiff contractor to charge attendance to remove fees (where no goods are removed) on the same visit a charge for levying distress is made, claims in its defence the following statement by Alastair Tomson QC: nothing expressly suggests that any fees chargeable under Schedule 3(1) (C)(Schedule 5 for council tax) must relate to a different visit to any fees charged under Schedule 3(1)(B) (5(1) (B) for Council Tax), indeed, the wording..in my view clearly suggests to the contrary: the phrase in brackets where, following the levy, the goods are not removed makes more sense if the visit is the same visit as the one during which the levy is made.

In my view therefore, a separate fee is chargeable for attendance with a vehicle on a visit where a levy takes place in respect to that Liability Order.

RESPONSE

1.

The opinion is based solely on the interpretation of three words: "following the levy". No consideration is given to what may have been meant by the wording in context with provisions under other heads of Schedule 5 (the Fee Schedule), to the Council Tax (Administration and Enforcement) Regulations 1992 (the Regulations) see Appendix. There also seems no consideration given to how the process of identifying goods, levying distress etc., works in practice.

2.

Out of context the phrase is ambiguous, i.e., where following the levy, goods are not removed. This can obviously relate either to a separate visit or to the one on which the levy was made. It would therefore be necessary to consider the aforementioned points (identifying goods, levying distress etc.) to make an informed decision as to whether charging an attendance to remove fee on the same visit as a levy would be lawful under the Regulations.

3.

Firstly, the wording of the Fee Schedule makes it expressly clear that under Head A and B, it is only possible that one (one or the other) of these fees may be applied in respect of a single visit. It may also be deduced that should the person making the visit succeed in levying on either a first or second visit, the fee raised would neither be the prescribed 24.50 nor 18 under head A, rather a head B charge, calculated (normally) as a percentage of the sum outstanding on the liability order no further fee then may be raised in respect of these visits.

4.

It is noted that all three charges (2 under A and 1 under B) may only lawfully be raised in circumstances where a visit to premises with a view to levying failed on at least two occasions and a subsequent visit was successful. Conversely, if the person levying distress succeeded in levying on the first visit, only one charge could be lawfully applied that under head B.

5.

This has significance not only in regards each fee described clearly having to be raised on separate visits, but also in the similarity of the wording (and differences) to describe the provision under head C and A.

6.

Head A is worded such that the prescribed fee either 24.50 or 18 (dependent upon it being the first or second visit) is an amount to cover costs of an unsuccessful visit to levy distress:

A For making a visit to premises with a view to levying distress (where no levy is made)

Similarly Head C is worded such that reasonable costs and fees incurred covers costs of an unsuccessful visit to remove goods: 1

"C For one attendance with a vehicle with a view to the removal of goods (where, following the levy, goods are not removed)"

7.

Under both head A and C, in order to raise a fee, it's a requirement that no action be carried out, it may also reasonably be assumed that in both cases a visit to the debtor's premises would be made in a vehicle.

8.

Apart from the purpose of the visit, a distinction is also made between the fee, which is prescribed in respect of head A, whilst for head C, reasonable costs and fees incurred, are provided.

9.

The fee under head A(i) is 24.50 (and may not deviate), whilst under head C local authorities typically allow their contractors to charge around 130.

10.

It implies that for an apparently identical action, the cost difference must be accounted for in some way. This could only realistically be down to the type of vehicle used by the person intending to levy distress (head A) or remove goods (head C). A bailiff having no previous levy would not have identified goods for removal, so arriving in his regular transport with a view to removing goods and raising the associated fee would be dishonestly doing so, given that in identical circumstances, under head A(i), he would be entitled only to the prescribed 24.50.

11.

Parliament therefore, in the case of council tax recovery, appear to have intended the phase: "where, following the levy, goods are not removed", not literally to have meant following the action of levying (immediately), but following a levy in circumstances where the bailiff had previously identified what (if any) goods were available to remove.

12.

In terms of imposing a charge under head C, there is no ambiguity that a bailiff attending with a view to the removal of goods must have already levied distress. By applying both head B and C fees in respect of the same visit, a

bailiff would be claiming he had attended with a view" to levying distress as well as with a view" to removing goods. The two ideas are clearly incompatible. A bailiff could not, with any credibility, attend with a view to removing goods, knowing that none had been seized, and that to lawfully take possessions requires items to have been levied.

13.

It does however, appear within regulations that both head B and D fees may be applied in respect of the same visit. In accordance with the law, it seems a bailiff may visit with a view to levy, then levy (imposing a charge under head B), and then if contracts allowed, remove goods under head D, imposing two charges in respect of the same visit.

14.

Where a head B and D charge may be imposed in respect of the same visit (as opposed to head B and C), it is crucially important to be mindful that a bailiff will already be in attendance at a debtors home and will have seized goods and may therefore then charge to remove them. He may not however, leave levied items and impose a charge under head C on the pretence that he had attended with a view to remove goods he had not; he had attended with a view to levying distress.

APPENDIX

SCHEDULE 5 CHARGES CONNECTED WITH DISTRESS Matter connected with distress A For making a visit to premises with a view to levying distress (where no levy is made) (i) where the visit is the first or only such visit: (ii) where the visit is the second such visit: B For levying distress: The lesser of (i) the amount of the costs and fees reasonably incurred; and (ii) the relevant amount calculated under paragraph 2(1) with respect to the levy. C For one attendance with a vehicle with a view to the removal of goods (where, following the levy, goods are not removed): D For the removal and storage of goods for the purposes of sale: ..... H Where no sale takes place by reason of payment or tender in the Circumstances referred to in Regulation 45(4)*; For fees incurred in respect of advertising. Either: (i) 24.50, or (ii) the actual costs incurred, to a maximum of 5% of the amount in respect of which the liability order was made. whichever is the greater. * Paragraph 4 to Regulation 45 Where an authority has seized goods of the debtor in pursuance of the distress, but before sale of those goods the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount, the sale shall not be proceeded with and the goods shall be made available for collection by the debtor. Reasonable costs and fees incurred. 24.50 18.00 Charge

Reasonable costs and fees incurred.