Yo peeps.

I could have sworn I retired from this but hey ho, needs must.

Sorry I don't have full details of this yet but a friend has been handed a bailiff letter -- just last night.

Basically, paid PCN at discount but allegedly too late (I'll be checking all that when I get a look at docs)

On arrival of Charge Cert and/or OfR victim 'fell' for a verbal Newham promise inviting an explanation letter with a
promise to consider exercising discretion --- yeah right!

Hence bailiff turns up + circa £420 (sounds about right).

Two possibly helpful pieces of info: Please advise if either of these useful -----

1/. The victim is already on a 'Debt Management Programme' ? I doubt this has any effect but interested to hear opinions.

2/. The vehicle concerned is 'Mobility' and hence, I understand, not owned by her. Does that obstruct the bailiffs possible actions? -- and then where do we go from there?

Ta.

A bailiff should not clamp a Motability car as it does not belong to the debtor. If she tells them that and gives them the details of her debt payment plan they'll probably decide to not bother further, that, or they will clamp the car anyway which leaves the motorist ringing the council and complaining and to the bailiff company telling them to look at the DVLA details. The Bailiff in Barnet did this to one of the people I was helping. I started ringing up the management tree, it was lunch time, so I got up 3 levels with only the Chief Operating Officer to go when the bailiff rang his office for instructions and unclamped. He was still rude despite being in the wrong. Every PCN for that person was then cancelled by the council in compensation. Result as we were in double figures (don't ask).

The other thing is not to open your door to a stranger and don't leave a window open that a bailiff can climb through.

Thanks mustard; I did think so but you'll understand I want to be on sure ground in such a matter.

Yeah, I know the rules re opening the door -- and I've just slapped her for opening it to me without asking who!!!!

On the mobility issue, presumably bailiffs can only attempt to recover money through other goods then?

Another basic question, as I've been out of the loop for a while: >>
Although owned by the mobility Co or agent or whatever they are, the car must be registered to her as the PCN (postal) was sent to her?
(She holds no VR Doc.)
Is that how it works?

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TE9 and 7 being submitted on the basis PCN already paid. I'm satisfied, from talking to her that it was paid in time but we are somewhat lacking proof.
Nevertheless, I'm satisfied she believes so.

After that, PCN details will follow here and it's hilarious. She had the cheek to use a loading bay to load - and got rejected.

The future problem will be how to get it back to an avenue of appeal; On the face of it at the moment I can't think how.

For now, first things first and TEC here it comes.

For some reason for a PCN debt bailiffs only ever seem to bother with vehicles, quick and easy and usually cover the debt I suppose.

The V5 will have both the name of Motability and the person who drives the car listed. I think you can find that in the FAQ on the Motability website.

I forgot that the bailiff should also have a policy for dealing with vulnerable individuals which someone who gets the higher rate component of the motability bit of Disability Living Allowance must be. Barnet Council can't seem to find theirs!

If your TE7/TE9 are accepted then the case will be referred to PATAS in London or the TPT outside of London and they will want to see proof of payment or you will be back where you started. Best get searching, presume it was by cheque or credit card. Get a duplicate statement if the original is lost?

I think that TE7 often get routinely rejected and then you have to pay £80 to appear in front of a District Judge at the local county court after filing form N244. Is it worth it if there is no car that can be seized?

£420 sounds high to me
be a miracle if they were not over charging as thats the norm.
get a breakdown from them - they have to supply it

Yeah I was shocked to see there was no breakdown of costs on the bailiff letter. (Iwon't name them until TEs safely in)

Also - bailiff letter was hand delivered yesterday - nothing else apparently said??? but dated over a week earlier.

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Mustard - on payment, that isn't in dispute; It was paid at discount and the dispute is only over whether or not in time.
So, if TEs accepted then I don't see any opportunity to appeal the laughable PCN - sadly.

If you look at the new Registration Documents it says in large letters across the front of it that the Registered Keeper is not necessarily the Legal Owner.

The bailiff cannot clamp or impound the Motability car as it is simply not her property. However they may well try it on in an attempt to intimidate the victim or a sympathetic neighbour or relative into paying up.

Document V188 published by the DVLA says this in Section 1 on page 5:
"For Motability contract hire vehicles: Motability will arrange to tax your vehicle each year and send the tax disc to you. As Motability registers the vehicle and holds the Registration Certificate (V5C) for the duration of your contract you must tell them of any changes to your address to ensure you get the disc on time.
Note: this does not apply to a vehicle that has been obtained on hire purchase from Motability."

This seems to come from some arrangement between the DVLA and Motability Operations to allow the cars to be taxed in the disabled class without the need to check that the end user has a valid certificate of entitlement or a DLA 404 (obsolete?) or WPA0442 or MHS 330 on the day the VED is due.

Motability will provide a copy of the V5c, if requested, since it may well be needed for parking permit applications, toll concession applications and the like.

The V5c will show the registered keeper in the form First Name, Last Name, Unique Ref Number and then the end users address. EG. the VQ5 response to a VQ4 query might be Miss Felicia Skoda (12345), address, etc. Motability Operations are not mentioned anywhere. Documents like the NTO should match.

I understand you to mean that the appellant had reps refused, discount was re-offered and the discounted charge was paid. Newham claimed that this was late? Have a look at PATAS key case 2020298182 (Reduced Penalty; Reduced penalty; payment outside discount period; cheque cashed; effect;) McGow v Richmond Upon Thames. The former Chief Adjudicator said:
"The Council would, of course, still have to take steps to enforce the penalty within a reasonable time: Davis v Kensington & Chelsea (PATAS Case Number 1970198981).
Council's should have in mind also that informing the motorist promptly that the Council will be enforcing full payment is important. This is because if there is any delay in doing so the motorist may assume the matter is closed and dispose of relevant papers. In such cases, the Adjudicator will be mindful of whether the requirement of a fair trial can be satisfied."

This post has been edited by Enceladus: Sat, 11 Jan 2014 - 00:35

Oh superb Sir!! The adjudicator has actually made the same points there that she expressed herself - it's feckin sneaky basically, just because there is no direct requirement in legislation to advise of further pursual.

I actually think she did pay in time (and her honest belief in that is enough to make the OOT application).

BUT - Newham take so long to open any mail that this wasn't just a matter of clearing a cheque. I'm hoping she'll find the stub with a date.
She daftly sent the rejection back with payment so we're a bit lost on dates to start with (I note Davis above!) but it should all come out in the wash.
I only noticed through looking at this that postal payments go to the very same address as challenges and reps -- and we know how long they take to look at those!

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Some basic questions coming in a mo re the TEC forms -- cos I'm not up to date innit. >>>>>

Ok, these are probably daft questions: _


1/. As I recall, neither of the TE forms need witnessing; Is that correct?

2/. I have previously submitted by FAX to TEC -- do they still accept that and does anyone have the number (the one straight through to processing?)

3/. I notice members here talking about submitting by e-mail - which would be great but raises the following >
a) If she completes the form as is possible by typing into the downloadable word doc - how does she sign it?
b) If it has to be hand signed can I print it to sign, then scan and send as a jpeg attachment?

Ta

Oh - and anything else you think I might have forgotten; Must be something.

This post has been edited by Neil B: Sat, 11 Jan 2014 - 15:36

A Witness Statement and the associated Out of Time application do not need to be witnessed. A Statutory Declaration and the associated Out of Time application (in respect of bus lane and moving traffic offences) do need to be witnessed.

You could try these fax numbers. 0845 408 5317 / 0845 408 5318

Print the forms, complete by hand if not typed, sign and then scan them as PDF. 150dpi will be fine. Then attach the PDFs to an email, the email address is on the form. tec.bulkcentre@hmcts.gsi.gov.uk I believe. I suspect that jpegs can also be used but the files will be bigger. I always use PDF and nobody has complained.

Did she receive the OFR? What date is on it?

Below are the TEC rules concerning OOT applications.

I queried the absence of an OfR with her when I saw the docs on Friday.
No explanation and she doesn't appear to recognise what I'm talking about --- so --- I can only assume it didn't arrive -- but rather odd.

Sequence of events was >>

Received rejection to reps on a postal PCN. Discount re-offered, as is their policy. Victim states, and believes, this paid and in-time.

Next received Charge Cert which itself is flawed as it demands conflicting amounts - a) £130 and, lower down, £195. (possibly rendering it unlawful?)

In response to the Charge Cert she phoned Newham to point out the PCN had been paid. She has the name of the person she spoke to and I have asked her to check if there is a record of this call on her phone account.
She was told that payment was received "late", presumably meaning outside the extended discount period. BUT, interestingly, Newham apparently stated this was due to her choosing to pay by cheque (one of the methods they invite). It is this last statement that makes me believe her assertion that she paid in time is likely true and that the delay was caused by Newham.
She then states that they explicitly suggested she write in to explain that she believed payment made in time and that they would look at the matter again. I see this as very relevant to excerpt you gave me from Davis; very understandably took the matter to be closed and particularly so since no OfR appears to have been received.

Currently missing:-

1/. Cheque book stub with a date of drawing the cheque, which I have asked her to find.

2/. Copy of the rejection letter as she daftly sent it back with payment. Hence I am stumped on the date of that rejection, the actual extended period offered and hence the deadline for payment.

3/. Any OfR

4/. Any breakdown of the bailiff charges now demanded, £410 (not 420 as I was told on the phone). Very relevant given the conflicting amounts on the Charge Certificate.

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On TEC forms - yep thanks, that's kinda what I thought was the best way so I'll print them for signing, scan in pdf and attach to e-mail.

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I am slightly concerned at the potential risks of this case.
Despite some indication of delay by Newham and my acceptance of the victim's belief to have paid, the real circumstances are yet to be revealed.

I believe she can honestly complete the TEC application with her belief and the info to hand BUT - it may transpire she is wrong.
Hence, if the application is routinely blocked by Newham, I'm unsure if a following N244 application would succeed (although Davis still helps if admissible).

Nevertheless, it is clear there has been an injustice here and especially so since the original PCN was issued unlawfully as far as I can see.

Thoughts anyone???

Does she write many cheques? The date of the next cheque may help with the timeline.

All councils take the stance that its the clearance date of the cheque that matters.
This is pure hogwash IMO (and makes them a few bob...)
provided the cheque is not dishonored it it is the date that it is received that is the payment date
(Bills of Exchange Act - a cheque is a Bill of Exchange)

What has likely happened is that the case has been auto progressed whilst the letter is sitting in the mail sack for some unknown period of time. Even though the cheque might have arrived in time it will have been applied to the account after the discount expired. Payment was satisfied when the cheque reached Newham (or it's agents) not when the cheque was deposited and/or cleared.

You need to put a payment date on the WS to establish the ground claimed. You don't have time to request a copy of the cheque from the bank (probably will charge) or to ask Newham for a copy of the NOR etc. So I suggest you put your best guesstimate.

As you are well aware the priority is to get the bailiff's warrant suspended and ultimately revoked.

Get her to check her bank statements and see when the payment cleared. Wind back 3 working days to get the date the cheque was deposited. Wind back an allowance of calendar days for the time sitting in the council post room etc. I suggest 5 (that's the unknown) working days. Wind back 3 further working days to allow for the transit through royal mail.

On the TE7 OOT application make it clear that the date is an guesstimate as the matter was presumed closed and there is no documentation available. However be assertive and make it clear that the cheque was posted such that it would have arrived, in the normal course of post, before the discount period re-offered in the Notice of Rejection expired. And make it clear that no Order for Recovery was ever received, the first she became aware of an outstanding penalty was a letter from a bailiff. Hence she had no opportunity to submit an in time Witness Statement and now requires and extension of time.

Newham sometimes fail to oppose the OOT so you might strike lucky. However it's likely that they will oppose and then I would expect that the TEC will reject so I would start planning for an N244 application.

When the OOT is accepted then Newham will have to refer the case to PATAS if they wish to continue to enforce.

Always retain all original correspondence from the Council. And always examine the envelopes and make sure that the franking date, if present, agrees with the date of the letter. Retain the envelopes. Keep safe copies of anything posted to the Council and post them 1st class at the post-office counter. Obtain and keep safe a free of charge proof of posting. Or use fax but keep safe the transmission report.

I would also write to Newham and ask for a copy of the Notice of Rejection.

This post has been edited by Enceladus: Sun, 12 Jan 2014 - 21:07

All appreciated but I can't be quite as rusty as I think as I seem to agree and had already done much of what you said.




Many thanks again.

I think one of the benefits of the forum is just the reassurance and being able to get confirmation and further views.
You are obviously all still very dedicated.

The TEC will inform Newham electonically the same day, provided that the submission is received before 16:00 pm Mon-Fri.

Neil, although as E said, TEC will inform the council electronically, once you have sent the forms to TEC, you should also phone and followup with an email confirmation to, the council to tell them and get confirmation that they will put the bailiff on hold. My friend didn't inform the council - relying on the electronic feed - and the bailiff turned up that evening and refused to go away even when shown the emailed forms as he hadn't been called off by the council. When we phoned the council the next morning, apparently the feed isn't always checked if it "comes through too late".

Conjecture overload?

Issues:
1. Car might be clamped.
2. Need to submit WS and OOT as soon as possible.

1 and 2 are linked: do 2 and 1 should be resolved. So submit the forms electronically if possible and then contact the council to advise them.

OOT
Reasons - did not receive Order for Recovery following receipt of CC dated ****. Only made aware of OfR when letter received from bailiffs *****.

WS
Grounds - paid the penalty charge in full.


What else needs to be done? If OP and their friend continue to examine issues then time might well overtake them. For example, if the issue of payment being sent/actioned by the council is on the margins, then the OP isn't going to be able to prove payment in time because of the variables of cheque date v when actually posted v properly addressed and first-class stamp/second etc. So don't concern yourself. Clearly payment was credited (my understanding of the CC is: penalty £130, surcharge 50% = £195, less sums already paid £65 = £130)

There's nothing special about this issue, it's simply one of the many breakdowns in communication which can occur. The OOT has nothing to do with your grounds for submitting the WS, only why it's late.

Surely as a the driver of a Motability car the driver is entitled to a Blue Badge?