Vulnerable - yet car clamped.

[Ahmed]

Hi,

I got a PCN from the council last year, which I dispute, but had very bad mental health problems then and didn't appeal in time. A few weeks ago I got a Notice of Enforcement from Newlyn. I accepted this, the council didn't do anything wrong, so I wrote to Newlyn on 4 November, telling them I will discuss this with the council, as I am sure they will understand the PCN shouldn't have been issued once I make my defence, and to please not send the bailiffs around as I have mental health problems and am signed off sick. I never heard from them, then yesterday my car got clamped at 6.02am, and then at 11.03am Newlyn sent me an email saying I will need to discuss this with the council.

Surely they should not have sent the baliffs around just like that as I am vulnerable. I am severely stressed, I am my mum's carer, she lives 70 miles away, I need thw car if she is ill. She has a hospital appointment on 1 December, I need my car. I told Newlyn, they first said they can't do anything and I must tell the council, I told them the council haven't clamped it, they did, so Newlyn then told me it is up to the bailiff, and I should talk to him. But yesterday when I contacted the bailiff, he told me he can't do anything, and I should contact Newlyn.

I want this clamp removed whilst I sort this out with the council. Surely they just can't clamp it like that when I told them I am vulnerable and with mental health problems.

Taking Control of Goods: National Standards, section 30 states

"Where enforcement agents have identified vulnerable debtors or situations, they should alert the creditor and ensure they act in accordance with all relevant legislation".

Does this mean the bailiff or Newlyn? I texted the bailiff and asked him who decides to remove the clamp, Newlyn, or him, and he has just ignored it.

Can someone help?

[zeke]

If you are a vulnerable person as defined in the guidelines, then that on its own doesn't get off the hook for the debt or the enforcement.

However as Newlyn has clamped a car, - which is taking control of goods, that revoked all the enforcement stage fees and charges.

The bailiff clamped your car at 6.02 am, check your home CCTV, if the bailiff clamped it before 6am, that revokes the enforcement and everything that follows.

You need to take a photo of the clamped car showing the wheel clamp and the number plate in the same picture. Make a copy of the Warning of immobilisation attached to the car and collate all other documents given to your Newlyn.

You can apply for a detailed assessment of the fees and charges because the bailiff is in breach of Regulation 12 of the Taking Control of Goods (Fees) Regulations 2014 which states: (highlighted)




Recovery of fees from vulnerable debtors

12. Where the debtor is a vulnerable person, the fee or fees due for the enforcement stage (or, where regulation 6 applies, the first, or first and second, enforcement stages as appropriate) and any disbursements related to that stage (or stages) are not recoverable unless the enforcement agent has, before proceeding to remove goods which have been taken into control, given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.




Your application for a detailed assessment is under Civil Procedure Rule 84.16, which states (highlighted)





Disputes about the amount of fees or disbursements recoverable under the Fees Regulations
84.16
(1) This rule applies where—
(a)there is a dispute about the amount of fees or disbursements, other than exceptional disbursements, recoverable under the Fees Regulations; and
(b)a party wishes the court to assess the amounts recoverable under regulation 16 of the Fees Regulations.
(2) A party may make an application to the court to assess the amounts.



You can also apply for your legal costs. The creditor pays them - that is the council.

It is up to the council to choose whether to reclaim them from the bailiff company or their liability insurer for the breach of regulations.

Search online for Bailiffs, applying for a detailed assessment of fees.

[Ahmed]

Thanks, Zeke. Totally understand that being vulnerable doesn't mean you don't have to pay, but surely it means that the enforcement agency and enforcement agent need to give you time to sort things out with the council? I don't just have minor mental health problems, I have problems that have blighted my life for the past few years, and so surely when I told Newlyn this, they should have taken it into account.

I have asked the council to ask Newlyn to stop this, as the Citizens Advice Bureau said they can do this, but there is an automated response that it can take up to 56 days to reply. I have texted the enforcement agent twice, and he is just ignoring the texts. The law clearly states that the enforcement agent should alert the creditor of vulneravle situations, so my question is, who is legally required to alert the creditor, which in this case is the council? Because then it might be qyicker for the council to ask them to remove the clamp.

[zeke]

Being vulnerable doesn't mean the case has to go back to the council.

It only means the bailiff cannot take control of goods unless giving the debtor adequate time to get advice, or in the failure, the bailiff may not recover the enforcement stage fees and charges.

For example, I've bought a case for a client against a bailiff who towed the clients car without giving an adequate opportunity to get advice, and also charged hundreds of pounds in storage fees.

The client applied for a detailed assessment under CPR 84.16, and the court ordered the car to be returned, and revoked all the enforcement stage fees including the storage fees.

It is fair to say the court only ordered the bailiff to deliver the car back to the client because the warrant of control was 'defective' because it didn't show the debtors current address. It wasn't because he was a vulnerable person.

It left the PCN debt owing, but the bailiff didn't bother coming back to collect it. It became a lost cause.

If you are a vulnerable person, you should alert the creditor and the bailiff by email at the earliest opportunity, with evidence, after learning about the enforcement.

That is usually on receiving a Notice of Enforcement. Or it can be on having the car clamped or towed.

In any case, you should always apply for your costs and for a stay on the enforcement when applying for a detailed assessment.