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Bailiff advice and insights from
With many people now suffering financial difficulties as a result of the credit squeeze, it is important to recognise the tactics that some of the less reputable bailiffs and their companies are using to enable them to charge additional fees to your account. Mainly, this will be by trying to charge either an "Attending to Remove/Van Fee or Enforcement Fee" and in many cases this fee will be in excess of £200 per visit !! We are detailing some of the tactics below:
Sending letters by second class mail:
Despite many contracts with local authorities stipulating that letters must be sent by first class mail, many bailiff companies are sending letters by either 2nd class mail.or even by TNT mail (which can take 3-5 days) to advise that they will be visiting a property unless the debt is paid within 5-7 days!!
If this were not bad enough, in many cases we are also finding the actual letter in the envelope is dated up to 5 days before the date of posting. This tactic will ensure that a bailiff visit will be made which will of course attract an addittional fee before you have had the opportunity to either pay or discuss the account with the bailiff company.
Hand delivered letters:
A bailiff company can only charge a letter fee of £11.20 when collecting an unpaid parking charge notice. For outstanding court fines, there is also an admin/letter fee(details are in our Downloads area), but for the collection of council tax the bailiff cannot charge a letter fee. It is now commonplace for bailiff companies to hand deliver letters that are entitled "Removal Notice" and for which a substantial additional charge has been applied. We have a separate section on this subject which you will find on the left hand side of our home page.
Liability Orders (council tax):
The Magistrates Court do not send out copies of Liability Orders and because of this, many people do not actually know the amount on the Liability Order. We would advise that you contact the council to ask how much the Liability Order is for. The reason for this is that we have seen so many cases where the amount being requested by the bailiff company is not the amount on the Liability Order. and in many cases can vary between an additional £24.50 for an "apparent first visit", £42.50 for two such visits and even a van visit of between £100 to £200. The inclusion of van fees is more common when the debt is for a large sum of money as the debtor will very likely not notice this charge. When questioned, the bailiff has tried to justify the additional amount stating that it must be the court fees !!
Setting repayments too high:
A bailiff will try to charge an "attending to remove/van fee" if you have defaulted on a payment arrangement.The simplest way to ensure that you default, is for the bailiff to insist on a repayment rate that is clearly not affordable. Predictably, the first payment is made on time, and the second or third payment is late. You need to be aware that if you make a payment arrangement either with the bailiff or his office on for instance the 10th of May, the bailiff companies computer system will automatically generate a "removal notice" and bailiff visit if you are just one day late with your payment. This is a very common tactic, in particular when the payment date falls on a weekend or bank holiday. For this reason, if you have to agree to sign a Walking Possession then you should agree before signing what amount you can pay. Your agreed payment should be made by debit/credit card to the bailiff company at least 3 days before the payment is due.
Making your monthly payment by cheque:
We have had so many queries where a payment was sent by cheque to the bailiff company who claim to have either not received the payment or received it late. As a result, this will also mean that the account has defaulted.........with a "removal notice/van fee" being charged !! Unless you have no other means of making your payment, we would advise that you avoid paying by cheque.
Receiving a bailiff visit for an unpaid PCN...never received the ticket:
This is probably the most common query we receive and normally comes to light if a bailiff company has located and clamped a car after detecting it by use of their ANPR equipped vehicles. Not surprisingly, the owner of the vehicle is adamant that they have no knowledge of ever receiving a parking ticket. Only by contacting the Traffic Enforcement Centre do they discover that in fact the PCN, and all the subsequent documents had been sent to a previous address or that the address was incorrect in some way. As the bailiff has a copy of the warrant on his computer he would be well aware of the address where all of the documents had gone.......but will not tell you this !! If this has happened to you, you will have grounds to file an Out of Time late Statutory Declaration..... even if you have previously had to pay the bailiff. You will find more on this under our ANPR section. In such cases, you may wish to contact our office for more in depth advice.
"Levying" on a vehicle that you do not own:
This is now also becoming commonplace with "less reputable" bailiffs, in particular when collecting for unpaid council tax. How it works is this: The bailiff will make a visit to your premises with "a view to levying distress" (this is the legal term). He can charge just £24.50 if this is the 1st visit and you are not at home and no levy is made. In order to generate more income for him and his company,the bailiff will instead post a form through the door to say that he has attended and "levied" on a vehicle either on the driveway or on the road outside. The bailiff will then charge both an additional "walking possession" fee and a "levy fee". The bailiff knows that there is case law that provides that he can "assume" that the car is yours and that it is up to you....not him..... to prove otherwise ( details of this case can be found in the Legal section of our Downloads area). Many times these vehicles are owned by sons/daughters/friends/even tradesmen etc. If this does occur, then a Statutory Declaration must be sworn by the owner of the vehicle and a request made that all fees and charges associated with this "levy" are removed. Again, you may wish to contact our office for assistance in completing this Statutory Declaration.
Until recently, it was very rare for a bailiff to clamp a car when he was enforcing a Liability Order for outstanding Council Tax. Sadly we are hearing of more and more bailiffs's clamping a vehicle in order to force you to pay the outstanding amount immediately.
Also, from an emotional point of view, the threat of having the family car taken is normally enough to force most people to go to extreme lengths to find the money to pay the debt, normally by borrowing money or using funds that are vital for utility and food bills etc.
If there is a danger that a bailiff could seize
your car, our advice would be to write immediately to both the
• The car does not belong to you.
• You are self employed and the car is necessary for business.
If the bailiff believes that that you own the car…he can take it. There is Case Law that shows that the onus of proof is on you, not the bailiff to prove ownership of the vehicle, and that it is “not reasonable” to expect the bailiff to make enquiries as to ownership”.
Please refer to the Legal Cases section of our Downloads area for a copy of this particular legal case.
What happens if you do not own the vehicle.
The bailiff can only take a vehicle that is owned by you. If the car is not yours….our advice would be to write to the bailiff company immediately, and remember…. it is up to you to provide proof…. not the bailiff. By visiting the Letters section in our Downloads area you can access a copy of a Template letter that can be adapted to suit your own circumstances.
It is important to note that in just one, maybe two cases in every 100 will a bailiff actually take goods. This is because the mere threat is normally sufficient to force the owner to find the money, either, by borrowing or using funds that are necessary for day to day living.
By law, a bailiff will be coming to your home to enforce a warrant by levying on goods……the truth however, is that he would much prefer full payment of the debt….. and his costs.
From a bailiffs point of view, although he may well arrive at your home in a removals type of vehicle, he really doesn’t want basic household furniture. This is because; the resale value at public auction is very low. Additionally, health and safety regulations commonly prevent electrical goods from being seized, in the same way that fireproofing regulations prevent soft furnishings, such as sofa’s etc actually being taken.
A bailiff is only allowed to take sufficient goods to cover the outstanding bill and his costs. For Child Support Agency arrears there are different items that the bailiff can and cannot take. Please refer to the Child Support Agency part of our site for further details.
Statutory Regulations state that the following items are exempt and must not be taken.
• "Such tools, books, vehicles and other items of equipment as are necessary for use personally in employment, business or vocation"
• "Such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying basic domestic needs of the person and family".
Because the above list is so vague, and not very specific, we have reviewed over 75 contracts between local authorities and their relevant bailiff companies to see what items are listed by the majority of councils as being exempt. These items are as follows:
• Goods of minimal or no resale value
• Food items, cooking utensils
• Items that would leave family unable to prepare a hot meal.
• Heating appliances
• Children’s items, toys, prams (but computers and bikes can be taken)
• Disability items to be used to care for the sick.
• Medical aids or medical equipment.
• Items purchased using money from Social Fund.
• The main form of cooking: if you have a cooker and microwave, the bailiff could take the microwave. If you only have a microwave then this must not be seized.
• Washing machine, vacuum cleaner.
• Personal items: such as family photographs/pictures.
• Items of minimal value, and or broken items.
• Goods either rented, or hired.
Items that are actually attached are also exempt from seizure. This would include built in ovens, flat screen televisions or stereo systems attached to the wall.
If bailiffs have removed items that are exempt, you will find that in our Legal Case section of our Downloads area we are providing details of a very important legal case that has been relied upon in many court cases. In addition, in our Letters section of our Downloads area you will also see that we have compiled a letter that can be sent to the local authority as a complaint that details the relevant legal ruling. This letter can be adapted to suit your own personal circumstances.
It is important to remember that the onus of proof is on the owner of the goods seized to show that they are exempt because they fall in any particular category. However, the courts have decided that bailiffs have a duty of care that they must exercise when seizing goods and that when a bailiff is put on notice that items do not belong to the debtor, then they must act with caution, and try to seize other items if at all possible.
CAN I GIVE GOODS AWAY BEFORE A BAILIFF ARRIVES?
Yes …….you have every right to protect your goods and assets.
As long as you remove goods before a bailiff arrives, there is nothing whatsoever illegal in this. A bailiff is allowed to levy anywhere in England & Wales on goods of yours that he can find, but it would be almost impossible to discover where the goods are located….unless you are going to tell him!!!
In the first instance, the most common way to protect your assets is to transfer them to a relative, children, friends etc. This has the effect of putting your assets beyond the reach of creditors.
There are 2 problems that could arise. The first being that there is an offence called “fraudulent removal”. This is contained under the Distress for Rent Act and is where a tenant has deliberately taken assets from the premises with the effect that there are insufficient goods to satisfy the levy.
In this particular instance the landlord, if he knew of the removal, could try to pursue those assets. However he would only be able to do this within thirty days of the removal. Therefore, if you are not a tenant and the landlord is not the person taking action against you…you can give goods away.
If a bailiff has only taken exempt goods, this will mean that the entire levy is seen as illegal and the bailiff will be seen to have committed an act of trespass.
If some exempt goods have been seized….along with items that are lawfully allowed to be taken, then it can be seen that the levy is only trespass and lawful in only so far as the exempt assets are concerned.
We have provided a more detailed explanation of this in our section entitled: BAILIFF OFFENCES.