where someone is in receipt of IS, but there is an O/p of council tax of around £3000, the council are saying that the overpayment is too large to be recovered from benefits and so they are seeking receovery through payment plan/ bailiffs and if nec. civil recovery, to the tune of £80/ month for 3 years. This is completely unaffordable for client.

client IS still getting IS. Can the council effectively 'opt out' of the maximum IS deductions in that way? It's not something I've come across before. Client has been told the council policy is to have maximum 3 year limit on repayment plans. (appeal, non recoverability and use of discretion are all non starters in this case unfortunatly), we seem to ahve reached the stage where we simply need to ensure repayment is affordable or go for bankruptcy as there is also significant HB o/p)

would be grateful if anyone could point me to the right regualtions/ guidance and/or decisions ebing used by the council or that we can use against them! many thanks

if client on IS, how can there be HB/CTB overpayments? or is it from period prior to receipt of IS?

and i think the council would surely struggle to get a judge to rubber stamp a payment plan that the client can't afford (client of course would have to go to court with proof of means...and state his/her own case on the unaffordability of the proposals)

hi claire, yes it's from a period of restrospective disentitlement for excess undeclared income.

If the matter goes before the magistrates and there is a good financial statement ask the Court to consider a payment plan for one of the years and to write of teh other or else the person will never get on top of things. Alternatively if they have a CCJ and debts of £5000 or less try an Administration Order.

Regards.

Brian.

I've known the courts to accept as little as .50p a week when it's clear the client just cannot afford anymore so this could work out better for the client, although court costs will be added to the debt.

there seems to be some sort of standard council tax recovery policy, and council tax benefit overpayments get treated as outstanding council tax. no doubt there is a lot of pressure on LA's to control CT arrears. here they try to recover within a tax year and refuse to make alternative payment plans without obtaining a liability order. this is upsetting for clients who are trying to make an arrangement and wish to avoid court action, and for claimants struggling with debts, immediately adds extra costs. LA's seem never to have grokked generally what the LG Ombudsman has said about court action being upsetting for people, and are utterly blase about using bailiffs. probably 'this pay us or we'll send the boys round' approach is one reason why CT is the nations most hated tax...

there has been a change in policy regarding the removal of protections for people on IS with regard to the use of bailiffs, but the pendulum imo, has swung too far, letting in the unedifying sight of ghouls feeding on the living entrails of the weakened or fallen; or if this is too fanciful a glimpse of a society eating itself, how about the bureaucratic pushing of people into a spiraling vortex of debt in the name of the common good, whilst, like some strange vorgon with a ken dodd voice saying "what a terrible problem debt is! let's fund some debt advice and have a strategy!"

ok, the LA's policy has to be flexible enough to operate reasonably and fairly and they still have to take account of his ability to pay. it might be worthwhile browsing the LGO website if reasonable representations fall on deaf ears, at least... here's a link
http://www.lgo.org.uk/digest.htm

Tue 29-Jan-08 01:58 PM by plumduff

LA's are not allowed to operate a blanket policy and them saying they want collection in full in 3 years and not to consider TPDs is a blanket policy..

The LA should look at all recovery options available and have good reason not to take any other option than bailiffs..

A few points I have done myself in the past with my clients:

1. If client can withstand bailiffs calling, without ever allowing them access into the home, the account will eventually go to Magistrates for comittal proceedings.. In the interim, I would advise claint to pay £3 per week, direct to the council to show willing.. Once at Mag Court, request remittance due to hardship. This is often a successful remedy, some Courts will remit all, other will remit some of the debt.. They will also set up a payment schedule, which if client on IS should be £3 pw.

2. I would write a letter of complaint to the council and ask them to accept the TPD's as bailiff demands are excessive and would leave young family below the poverty line (esp. good if the council has anti poverty strategy)... When the council says no, and gives no good reason for the refusal apart from blanket policy of wanting debts cleared in 3 yeras, I would submit a complaint to the Local Givt Ombudsman..

I have done both options many times.. Option 1 is good, if you have a Court who doesnt mind remitting debts..

Option 2 is good as the CTU can end up getting the knuckles rapped..

I had a simialr case where the council would not recall from bailifs to set up deductions, as they had done so years before and the cleint had dared to start working..

However, they had both since retired and due to illness could no longer work.. The council still said no with all the info, so I complained to the LGO, who informed the council to start deductions...


Oh yes, another point is that the bailiffs should adhere to the "National Standards fro Enforcement Agents", in this it states that where the 'debtor' is vulnerable, the case should be retunred to the council.. Potentially vulnerable groups include - single parent families, seriously ill and unemployed people...

Owing to this, the account shouldnt be given to the bailiffs in the first place..

Email me if you want to discuss.. Dianne.

very many thanks for all your advice and observations which all resonate loudly!.

a hated tax jj? surely not!

have drafted letter challenging the fettering of discretion and also requesting that they seriously reconsider sending in the bailiffs, politely suggesting that if they must enforce recovery and won't agree a reasonable repayment/ deduction rate (ie £3 a week) they let the court assess rate of recovery.

thanks for the pointers - particularly the ref to the 'National standards' which I hadn't come across before at all. that's been thrown in with a generous dollop of potential grounds for a complaint.

I'll let you know what response i get.

As the Council for a copy of its Corporate debt recovery policy and see if it has a section on collections from vulnerable people. If so and you client comes under that umberella then formally complain and pursue it all the way to th eOmbudsman.

That's all nicely topical - new client this morning, local council sending bailiff to client's parent's home, whcih address was only given for correspndence whilst client abroad, which council knew....

mmm...

also coincidentally - : )

http://www.timesonline.co.uk/tol/comment/columnists/magnus_linklater/article3273168.ece

Claire is that not abuse of process as any warrant is only enforcable on the property that the order was made on.