Dear Cheshire West and Chester Council,

I believe the document in the link is (or makes up part of) submitted evidence to a police fraud department:

http://www.scribd.com/doc/155399034/NELC...

There is evidence within that document to show potentially 3,523 Cheshire West and Chester residents have paid fraudulently demanded bailiff fees amounting to £86,313.50 over approximately a 4 year period.

Please supply under the Freedom of Information Act 2000 the recorded number of fees, to which the data relates, which have been refunded to the debtor by Cheshire West and Chester Council or its bailiff contractors?

Yours faithfully,

Sacksen Molar

Cheshire West and Chester Council

RE: Your request under the Freedom of Information Act 2000

Case Reference: 101001847400

Dear Mr Molar

Thank you for your email on 24th February 2014.

It will be treated as a request within the meaning of the Act: this means that we will send you a full response within 20 working days, either supplying you with the information which you want, or explaining to you why we cannot supply it.

If we need any further clarification or there is any problem we will be in touch.

In the meantime if you wish to discuss this further please contact FOIWEST. It would be helpful if you could quote the log number.

Yours sincerely

Will Webb
Solutions Team

Cheshire West and Chester Council

dangos adrannau a ddyfynnir

FOI West, Cheshire West and Chester Council

Dear Sirs

 

With reference to your request for information reference 1847400.

 

I am sorry but the link you have provided seems to be corrupted or not in
a format from which we can easily extract any information.  Please could
send the actual PDF document or forward a more easily accessible link.

 

In the meantime I have put your request on hold.  If we not hear from you
within the next 5 working days we will close your request.  However, this
does not preclude you from submitting the same or similar requests in the
future.

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

dangos adrannau a ddyfynnir

Dear FOI West,

I don't have the actual document (can only access from the link).

If it helps I could copy and paste the text from it into a following message. I doubt however that the data which is contained in a table, would transfer legibly.

Yours sincerely,

Sacksen Molar

FOI West, Cheshire West and Chester Council

Dear Sacksen

Thank you that would be helpful. Although the text to me appears to be giant and over laps. If you can send it in a format that is legible that would be very helpful.

Ruth Winson

dangos adrannau a ddyfynnir

Dear FOI West,

[Quote)
Please find attached a recent report from the Department of Communities and Local Government entitled “Guidance to local councils on good practice in the collection of Council Tax arrears”.

I draw your attention to paragraph 5.8 which I think is acknowledgement by the Government that the police should be taking allegations seriously where fraudulent practices are reported:

“5.8 The Government consider that any fraudulent practices should be reported to the police as a criminal offence under the Fraud Act and that Local Authorities should terminate any contract with companies whose activities are proved fraudulent.

An update

The data relating to bailiff fees (Head H) which NELC has refused to release and been in dispute for more than 18 months has finally been disclosed. No explanation has been given why the estimated cost of £40k has no longer been a contributing factor for withholding the data.

I’ve enquired with the council, Information Commissioner and Tribunal and it is becoming increasingly clear that I will unlikely be told why the information has now been released.

The Information Commissioner has stated why they won’t explain which amounts to there being nothing in law obliging them to. The Tribunal regrets that “there is no further action the Tribunal can take given that a final decision has been reached” – my appeal was struck-out obviously on erroneous grounds. The Council claimed further investigation was made as soon as it was identified that other councils were able to supply the information. The reality is I had informed the council months before that it was possible, but it maintained the data was not held. I’m guessing the council disclosed it because subsequently my evidence might have been sent to NELC indirectly from the Tribunal or Information Commissioner.

The results are as I expected; the fee has been incurred by householders in hundreds of cases where goods had not been removed, and as such been charged to hike up debt to financially advantage the bailiff firm.

NELC’s bailiff contractor, Rossendales Schedule 5 “Head H” fees data

Period Total number where fee incurred Total number where fee paid Value of incurred fees based on statutory min. Fees paid based on statutory min.
2007-08 387 186 £9,481.50 £4,557
2008-09 241 201 £5,904.50 £4,924.50
2009-10 218 216 £5,341 £5,292
2010-11 162 159 £3,969 £3895.50
2011-12 185 169 £4,532.50 £4,140.50
2012-13 191 133 £4,679.50 £3,258.50
2013 - date 34 6 £833 £147
Totals 1,418 1,070 £34,741 £26,215

It is almost certain that the number of times goods were removed in the above cases will be insignificant and would expect – if any – to be in single figures if and when confirmed.

Over the period, and assuming goods had not been removed in any cases, the fee had been charged 1,418 times where it could not possibly have been lawful and was actually paid in well over a thousand instances by the person being pursued by bailiffs.

Schedule 5 “Head C” fees data “Attending with a vehicle”

The “Head H” figures for North East Lincolnshire are just the tip of the iceberg. The figures which I hope to have shortly relating to attendance fees are likely to boost the fraudulently demanded £35k substantially. It has been disclosed already that NELC has agreed set fees with Rossendales (£130) for attending with a vehicle with a view to removal of goods (where following the levy, goods are not removed). This is inappropriate particularly because legislation states: “reasonable costs and fees incurred”.

The council has also agreed set fees as a second element to what is the statutory “attending with a vehicle charge”. This is described as waiting time for which there is no provision in law and solely makes up a contractor’s hourly rate as it is over and above the £130 fee which itself includes an hourly rate as the council describes:

“For each half hour waiting time (not including the first hour which is covered within the attendance fee): £32.50

The only information obtained so far is the total number of cases sent to Rossendales incurring the “attendance fee” over a period covering 2009-10 to date. That figure is 2,803 which based on the current £130, relates to a value of £364.4k. Clear cut cases where the fee would categorically not be chargeable are currently being fought over and will hopefully be released. A handful of councils have been able to provide this data. However, it’s likely all 2,803 of those incurring the fee will have been overcharged in the way detailed in document ref, Fraudulent attend with vehicle.pdf, sent as attachment in email 8 February 2013.

The following table contains data disclosed over roughly a four year period from three local authorities. Incidentally the bailiff contractor in all three cases is Rossendales.

Schedule 5 “Head C” fees data Obtained for period 2009/10 - Date

Local Authority and bailiff contractor Total No where fee incurred Fee where agreed Value of total fees incurred No fee incurred on levy visit Value of fees incurred on levy visit Fee where agreed for
(Waiting time)
North Lincolnshire
Rossendales 863 £130 £112,190 383 £49,790 £70/hour
Lincoln City
Rossendales 1,188 £130 £154,440 554 £72,020 unknown
Mid Sussex District
Rossendales 1,103 £130 £143,390 667 £86,710 £65/hour
Totals 3,154 £410,020 1,604 £208,520

The table tells us – from aggregating data of all three councils – that on average, 50% of the cases charged the “van attendance” fee, incurred it in respect of the same visit where goods were levied (also incurring a fee). This as detailed in the document (ref Fraudulent attend with vehicle), will have been to make maximum gain for their employers.

From only three of more than 350 local authorities in England and Wales, the scale of the crime is put in perspective with councils demanding £208.5k from alleged debtors (for which they’re not lawfully entitled), over the short period in question.

It’s worth noting that there may be a number of councils opting to take tighter control over their contractors as indicated by South Gloucestershire Council. That authority, although charging the attendance fee 401 times over the four years has stated that "No Van fee" is charged unless a levy is already in place. If what they have stated is implemented then they’re playing by the book, however, this goes against what has been disclosed in the data supplied by the three sample authorities.

Additional Local Authorities supplying redemption (Head H) fees data

There have been a number of local authorities asked to supply Head H fees data, who on the whole have been able to supply it without the obstruction experienced with NELC.

The table below details the findings. Where the council supplied a breakdown, the data is itemised by bailiff company where more than one is contracted to the authority.

Local Authority and bailiff contractor Total number where fee incurred Value of incurred fees based on statutory min. Total number of times goods removed No of fees incurred in certain breach of law Value of fees incurred in certain breach of law
Fylde Borough
Rossendales 167 £4,091.50 0 167 £4,091.50
Ribble Valley Borough
Rossendales 76 £1,862 4 72 £1,764
Blaby District
Rossendales 8 £196 3 5 £122.5
South Ribble Borough
Jacobs 1,395 £34,177.50 0 1,395 £34,177.50
South Kesteven District
Jacobs
Rossendales
Bristow & Sutor 756
(286)
(381)
(89) £18,522
(£7,007)
(£9,334.50)
(£2,180.50) 5
(0)
(0)
(5) 751
(286)
(381)
(84) £18,399.50
(£7,007)
(£9,334.50)
(£2,058)
Lancaster City
Equita *
Rossendales 208 £5,096 1 207 £5,071.5
Hyndburn Borough
Jacobs
Rossendales
Rundle & Co * 164 £4,018 0 164 £4,018
Breckland District
Rossendales 464 £11,368 1 463 £11,343.50
Colchester Borough
Jacobs
Rossendales 2,001
1,517
484 £49,024.50
(£37,166.50)
(£11,858) 2
(0)
(2) 1,999
(1,517)
(482) £48,975.50
(£37,166.50)
(£11,809)
Mansfield District
Rossendales
Rundle & Co
Bristow & Sutor 1,570 £38,465 4 1,566 £38,367
Preston City
Rossendales 404 £9,898 0 404 £9,898
East Riding of Yorkshire
Newlyn
Rundle & Co * 2,092 £51,254 1 2,091 £51,229.50
Bassetlaw District
Jacobs
Rossendales
Bristow & Sutor 1,875
(1,081)
(172)
(622) £45,937.50
(£26,484.50)
(£4,214)
(£15,239) 1
(0)
(1)
(0) 1,874
(1,081)
(171)
(622) £45,913
(£26,484.50)
(£4,189.50)
(£15,239)
Stockton on Tees
Bristow & Sutor
Jacobs 4,109 £100,670.50 10 4,099 £100,425.50
Hastings Borough
Rossendales 238 £5,831 0 238 £5,831
Scarborough Borough
Bristow & Sutor
Dukes
Jacobs
Newlyn
Rossendales 2,951 £72,299.50 0 2,951 £72,299.50
Bradford City
Jacobs
Phoenix 1,341 £32,854.50 0 1,341 £32,854.50
Gedling Borough
Bristow & Sutor
Dukes
Rossendales 1,558 £38,171 19 1,539 £37,705.50
Wrexham
Jacobs
Rossendales
Excel 2,994
(1,552)
(168)
(1,274) £73,353
(£38,024)
(£4,116)
(£31,213) 9
(2)
(0)
(7) 2,985
(1,550)
(168)
(1,267) £73,132.50
(£37,975)
(£4,116)
(£31,041.50)
Cheshire West & Chester
Bristow & Sutor
Dukes
Jacobs 3,547 £86,901.50 24 3,523 £86,313.50
South Gloucestershire
Bristow & Sutor
Rundle & Co 942
(942)
(0) £23,079
7
935
£22,907.50

Totals 28,860 £707,070 91 28,769 £704,840.50
* It has been stated Rundle & Co and Equita do not apply the Head H fee (see following)

The above, for which the £0.7 million has been incurred in certain breach of law, represents only around 6% of local authorities in England and Wales. It would therefore not be unreasonable to estimate a figure of £11.75 million if all councils had submitted redemption fee data.

Results are pretty consistent. The majority of bailiff firms see the redemption fee as a bonus whenever levying and most councils raise no objection. However, the research has discovered some exceptions, i.e., an odd council has decided, as policy, not to charge the fee – as have one or two bailiff firms.

Lincoln City Council has an agreement with its bailiff contractor, Rossendales, not to apply the Head H fee. It joins Brighton & Hove along with Thurrock Borough Council to make up the three authorities discovered that do not allow its bailiff contractor to charge this fee.

In a slightly different scenario, Milton Keynes do apply the fee, but in accordance with the law.

Where an authority uses more than one bailiff firm it is worth noting those which have stated one but not the other of its contractors charge the fee.

Havant Borough Council use Equita and Ross and Roberts but have stated where Equita do not levy costs under schedule 5 (H), Ross & Roberts do, but are unable to split these out from other costs and fees for disclosure.

South Gloucestershire Council use two different bailiff firms for council tax but state Rundle & Co do not charge header H on any case, whilst its other contractor, Bristow & Sutor, quite liberally do.

The significance of this being the negligence on the part of the council if it allows one contractor to charge whilst at the same time does not question why its other bailiff firm has decided not to risk legal challenge.

Northampton Borough Council were found to be in a class of its own having Rundles & Co, Bristow & Sutor, Equita and Rossendales enforcing alleged council tax debt, with allegedly only Rossendales applying the fee. In the cases of Equita and Rundles & Co, the statement concurs with what other councils have said, however, to be convinced that Bristow & Sutor – with referrals totalling 10,296 over the period in question to have not incurred a redemption fee – is another matter.

To conclude, Swindon Borough Council, who contract Ross and Roberts, confirmed that they were unable to provide the data as the information could not be extracted from their computer records and further confirmed they were unable to provide the data for any of their Local Authority customers.

[End quote)

Yours sincerely,

Sacksen Molar

Gadawodd Ray McHale anodiad ()

So the data provided here seems to be saying that 3,500 people in Cheshire West and Chester were fraudulently charged £86k by bailiffs acting on behalf of the Council? Is that what is being said?

Gadawodd Sacksen Molar anodiad ()

Ray!

The fraudulently charged £86k will only be a fraction of the amount. Finding out the rest would require further admission by the council or the police to investigate.

Gadawodd N.Siddle anodiad ()

I have downloaded the document as a straightforward .pdf. I will forward a copy to Ruth Winston today

Nic Siddle

Gadawodd N.Siddle anodiad ()

.pdf copy now sent to CWaC Solutions team addressed - FAO Ruth Winston re FOI 1847400 from Saxon Molar

Nic

Gadawodd geoff kelly anodiad ()

This council are aware they are on very dodgy ground with these charges...A lottery of which charges you get due to the company you get..It must stop..

Gadawodd michael cattell anodiad ()

This is an outrageous state of affairs and really should be escalated to a national level.
The C.A.B. have a social policy section where situations such as this are taken up and lobbied with government.
Can I suggest you forward the correspondence so far the the C.E.O. of C.A.B's email is.......

gillian.guy@citizensadvice.org.uk.

Gadawodd geoff kelly anodiad ()

I got this from them in January giving numbers over the last few years...

https://www.whatdotheyknow.com/request/n...

Gadawodd Ray McHale anodiad ()

Presumably this needs someone local who has had these charges to seek legal support in challenging these Head H charges. I have raised it with a number of councillors

Gadawodd Arnold Layne anodiad ()

There is extensive coverage of these issues on the link below.

http://www.consumeractiongroup.co.uk/for...

The post linked to highlights that the Police are avoiding Independent Police Complaints Commission scrutiny for wrongly classifying complaints as direction and control issues when clearly they are conduct matters. If the complaint was correctly classified then there would be a right of appeal to the Commission.

Gadawodd Ray McHale anodiad ()

I raised this issue with Justin Madders - leader of the Labour Group on CWAC. He sent me a copy of the reply he received from Jerry Faulkner (Legal Officer?) - which indicates the council have looked at this and are satisfied the charges are legal. There is no detailed response to the arguments raised, or an indication as to whether this is "best practice" or a situation the Council could nevertheless influence by agreement with the bailiffs they employ.

From: FAULKNER, Jerry
Sent: 06 March 2014 10:47
To: MADDERS, Justin (Councillor)
Subject: RE: Bailiffs

Dear Cllr Madders

Thank you for bringing this issue to my attention.

It is something that I have also been alerted to in the last few days, indeed we have received an FOI request which includes this link and have investigated its allegations hence me taking a few days to respond to you. The bailiff companies that CWAC work with are professional certificated bailiff companies and they have confirmed that their application of both sets of fees referred to is lawful and as guided by their trade association CIVEA (Civil Enforcement Association). We have investigated the allegations which appear to be based on incorrect interpretation of the regulations dealing with permitted bailiff costs. We have also reviewed legal opinion provided by Counsel to the bailiff industry in 2005 which supports the advice CIVEA provide to the bailiff industry and to which our bailiffs adhere to.

Kind regards
Jerry

Gadawodd Sacksen Molar anodiad ()

I would think many people appreciate the excellent efforts being made in bringing the issues raised in this FoI request to the attention of CWAC councillors.

However, the responses in Jerry Faulkner's email are typical of the defeatist attitude of people who prefer an easy life and favour listening to those who provide answers which facilitate that easy life.

FIRST POINT: (CIVEA – Civil Enforcement Association)

http://www.civea.co.uk/news-5.htm

The council has allowed bailiff firms and CIVEA (above link) to pull the wool over its eyes with this. The statement is a smoke screen which appears to have been effective. There is nothing to support that the charge can be made when goods have not been removed, it only states that the fee under Head H of Schedule 5 is perfectly legitimate "in accordance with section 45 (4) of the regulations".

SECOND POINT: (Counsel "Opinion" 2005)

I expect the Opinion is this one:

http://www.scribd.com/doc/211334487/Ross...

And an argument to that here:

http://www.scribd.com/doc/211334739/Argu...

THIRD POINT: (Counsel "Opinion" – Attending to remove fee)

Another Counsel Opinion and argument to that is below:

http://www.scribd.com/doc/204297878/Argu...

Gadawodd Ray McHale anodiad ()

I have asked one of the Manchester TUC Unemployed Centres with legal advisors for a view on this. I have passed this helpful response on to them, and also to Cllr Madders.

Gadawodd elizabeth anodiad ()

Gadawodd geoff kelly anodiad ()

I have also corresponded with councilor paul donavon on this last year and the labour group...They are aware this is going on...

FOI West, Cheshire West and Chester Council

Dear Mr Molar

 

Thank you for your request for information of 23 February 2014 which has
been logged as 1847400 and has been dealt with under the Freedom of
Information Act 2000.  I confirm that Cheshire West and Chester Council
hold information relating to your request and am able to provide you with
the following response.

 

For the purpose of clarity,  I have reproduced your request and append the
answers beneath each question:

 

I believe the document in the link is (or makes up part of) submitted
evidence to a police fraud department:

[1]http://www.scribd.com/doc/155399034/NELC...

There is evidence within that document to show potentially 3,523 Cheshire
West and Chester residents have paid fraudulently demanded bailiff fees
amounting to £86,313.50 over approximately a 4 year period.

Please supply under the Freedom of Information Act 2000 the recorded
number of fees, to which the data relates, which have been refunded to the
debtor by Cheshire West and Chester Council or its bailiff contractors?

 

In response to request for information I would firstly confirm that
Cheshire West and Chester council only work with professional certificated
bailiff companies. All these companies have confirmed that their
application of all the fees that you have referred to is lawful and as
guided by their trade association CIVEA (Civil Enforcement Association).
The Council has investigated the serious allegations that you have made
and as a result disagree with your allegations.

I confirm that no bailiff fees have been refunded to debtors in the
circumstances that you describe.

 

I trust this answers your enquiry.

 

The Council considers that your request has been answered in full by
either confirming that information is not held, providing you with the
information requested, or explaining why any information has been withheld
and the reasons for any redaction.    Where applicable, the Council has
also told you the reasons for the delay in responding to your request.

 

If you are unhappy with the way your request for information has been
handled you can request a review by writing to the Solutions Team within

40 working days from the date of the Council’s response.  You are entitled
to a review by the Council if:

·         You are dissatisfied with the Council’s explanation of why the
application was not dealt with within the 20 working day time limit.

·         All the information requested is not being disclosed and you
have not received an explanation why some information is not being
disclosed.

·         A reason for the disclosures under the request being refused is
not received.

·         You consider that exemptions have been wrongly applied, and/or

·         You consider that a fee has been wrongly applied.

Please set out your grounds for seeking a review together with what
specific part of your request those grounds apply to and the outcome you
are seeking.  The Council reserves the right to ask you for clarification
of the grounds for your review request if the grounds are not clear, and
to delay commencing the review if such grounds are not provided.

 

The Solutions Team can be contacted by email via: 
[2][Cheshire West and Chester Council request email] or at the following address:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

The Solutions Team will acknowledge a request for an internal review
within 5 working days and complete the review as soon as possible and no
later than 40 working days from receipt of the request.

 

More information about the Council’s internal review process can be found
via:
[3]http://www.cheshirewestandchester.gov.uk...

 

If you remain dissatisfied following the outcome of your review, you have
a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [4]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Ruth Winson

Solutions Team

Cheshire West and Chester Council

 

 

 

dangos adrannau a ddyfynnir

Dear FOI West,

Thank you for your response. I am not contending your response and feel sure you have complied with the FOIA 2000. You have stated that no bailiff fees have been refunded in the specific circumstances and that is all I requested.

However, I have reason to believe that the council has allowed its bailiff contractors (and CIVEA) to pull the wool over its eyes. The statement (which I assume is this http://www.civea.co.uk/news-5.htm ) provides nothing to support that the charge can be made when goods have not been removed, it only states that the fee under Head H of Schedule 5 is perfectly legitimate "in accordance with section 45 (4) of the regulations".

I would therefore like disclosing all the information which Cheshire West and Chester council holds as a result of its investigations into the "serious allegations" which has satisfied the council that the application of all the fees I have referred to is lawful.

Yours sincerely,

Sacksen Molar

FOI West, Cheshire West and Chester Council

Dear Mr Molar

 

Thank you for your email regarding reference 1847400.

 

I am sorry but I do not understand your final sentence.  Please can you
clarify what action you require.

 

Yours sincerely

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

dangos adrannau a ddyfynnir

Dear FOI West,

Please accept my appologies, there was a typo in my last sentence.

I should have asked the following:

Please disclose all the information which Cheshire West and Chester council holds as a result of its investigations into the "serious allegations" which has satisfied the council that the application of all the fees I have referred to is lawful.

Yours sincerely,

Sacksen Molar

FOI West, Cheshire West and Chester Council

Dear Mr Molar

 

Thank you for your clarification of 24 March 2014.

 

It will be treated as a new request within the meaning of the Act: this
means that we will send you a full response within 20 working days, either
supplying you with the information which you want, or explaining to you
why we cannot supply it. 

 

If we need any further clarification or there is any problem we will be in
touch.

 

In the meantime if you wish to discuss this further please contact
FOIWEST.  It would be helpful if you could quote the log number 1912058.

 

Yours sincerely

 

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

 

dangos adrannau a ddyfynnir

Gadawodd Cherie Jerez anodiad ()

Page 10, paragraph 48 of a Local Government Ombudsman's report into complaint about bailiff fees:

http://www.lgo.org.uk/GetAsset.aspx?id=f...

"Head H fee

48. I note the bailiffs charged a ‘redemption fee’ of £24.50 under Head H of Schedule 5 in respect of one of the vehicles on the 2005 liability order. This fee was removed when the Council established the car did not belong to Mrs Smith. I welcome this action. But the Head H fee should not have been applied on the facts of this case: the goods were not ‘made available for collection by the debtor’ as they were never removed. This was maladministration."

A lot of £24.50s have been unlawfully charged to council tax payers it seems by Cheshire West and Chester Council's bailiff contractors, abetted by the authority. Shouldn't they all be returned?

Gadawodd R. Skinner anodiad ()

These fees need refunding. How much more evidence do you need?

Here's some more.

Government proposals (page 10) to amend legislation more than indicate what the fee was for:

http://www.docstoc.com/docs/4679144/COUN...

"viii) the introduction of a fee maximum of 5% of the amount of the liability order for advertising costs where a sale does not take place because the debt has been paid and the goods have been returned to the debtor.

A fee maximum was accepted in principle, but it was pointed out that for small debts this would not cover the costs of advertising. Therefore, we intend to amend secondary legislation with effect from 1 April 1998 setting a fee of £20 or actual costs incurred up to a maximum of 5% of the liability order, whichever is the greater."

Gadawodd Ray McHale anodiad ()

Cherie Jerez. The link to the ombudsman report doesn't work. Do you have a link?

Gadawodd Cherie Jerez anodiad ()

Ray!

I see what you mean, I should have checked....

http://www.lgo.org.uk/GetAsset.aspx?id=f...

Here's a bonus:
http://www.blackmorevale.co.uk/Council-B...

I'll make sure it works before posting this time.

FOI West, Cheshire West and Chester Council

Dear Mr Molar

 

Further to your request for information reference 1912058.

 

I am sorry but we are not able to respond to your request within the
deadline.  I apologise for the delay and hope that we can reply by the end
of next week.  Either way I will keep you informed.

 

Yours sincerely

 

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

dangos adrannau a ddyfynnir

FOI West, Cheshire West and Chester Council

Dear Mr Molar

 

Further to your request for information reference 1912058.

 

I am sorry that we have not been able to respond to your request.  We are
awaiting legal advice regarding disclosure.

 

I appreciate you have been waiting a while but trust that you will be
patient a little longe.

 

Yours sincerely

 

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

Tel:           01244 976716

email:       [email address]

Location:  Floor 2, HQ, 58 Nicholas Street, Chester CH1 2PN

Visit:        cheshirewestandchester.gov.uk

 

 

dangos adrannau a ddyfynnir

Gadawodd geoff kelly anodiad ()

FOI West, Cheshire West and Chester Council

1 Atodiad

 

Dear Mr Molar

 

Thank you for your request under the Freedom of Information Act 2000, I am
able to provide you with the following response and apologise for the
delay in doing so.

 

1.       I would therefore like disclosing all the information which
Cheshire West and Chester council holds as a result of its investigations
into the "serious allegations" which has satisfied the council that the
application of all the fees I have referred to is lawful.

 

When considering the allegations you made that potentially 3,523 Cheshire 
West and Chester residents have paid fraudulently demanded bailiff fees 
amounting to £86,313.50 over approximately a  4 year period the Council
referred to Counsel advice provide by David Holland QC in 2005. This
advice was adopted and endorsed by the bailiff industry. The Council also
made enquiries of the 3 bailiff companies it uses to clarify the position
on bailiff fees in general.

 

The Council therefore holds 4 emails that could be considered to fall
within the remit of your request, being a copy of the email from the
Council to the 3 bailiffs on the subject of Head H fees and other matters
outside the remit of your request.  Please find attached redacted copies
of those emails.  A significant part of the redaction relates to queries
and responses to matters unrelated to the use of Head H Fees.  The other
redaction has been applied for the following reasons:

 

Section 42 – Legal Professional Privilege

 

The Council considers that this information is exempt under Section 42
(Legal Professional Privilege) of the Freedom of Information Act 2000. 

The email correspondence refers to legal advice produced for CIVEA for the
purpose of giving legal advice to them and the bailiff companies they
represent. All references to  legal advice is exempted from disclosure
pursuant to Section 42, Legal Professional Privilege.

The convention of legal advice privilege is part of the principle of Legal
Professional Privilege (“LPP”).  Legal advice privilege may apply whether
or not there is any litigation in prospect. It will only cover
confidential communications between the client and the lawyer made for the
dominant purpose of seeking or giving legal advice. Only communications
are covered. This will include written correspondence (letters, emails or
faxes) and oral communications, or documents setting out the content of
those communications. The dominant purpose of the communication or
document must be to obtain legal advice, or to give it. The advice itself
must concern legal rights, liabilities, obligations or remedies or
otherwise have a relevant legal context.

 

The documents falling within this exception are the emails from
representatives of Jacobs, Dukes and Bristow & Sutor, summarising the
advice they received about the use of Head H Fees. The communications were
not intended for wider disclosure and were written for the purpose of
confirming legal advice.

As the information is covered by LPP the public interest test applies. The
information must still be disclosed unless the public interest in
maintaining the exemption outweighs the public interest in disclosure. If
the balance of the public interest is equal, the information should be
disclosed. The public interest will be particularly strong if the advice
is recent or still being relied upon. The public interest may also be
particularly strong if the advice is related to significant interests of
individuals or a commercial interest.

            In relation to the public interest test the following should
be recorded:

·         Public interest factors in favour of maintaining the exemption
and the weight attached to them.

·         Public interest factors in favour of disclosure, and the weight
attached to them.

·         The outcome of the public interest test. The information can
only be withheld if the public interest in maintaining the exemption
outweighs the public interest in disclosure.

Factors in favour of maintaining the Factors in favour of disclosure
exemption
Fundamental principle at common law General principle of disclosure of
that a client is entitled to receive information under FOI
confidential advice from a lawyer
HIGH
HIGH
The ability to obtain full free and Transparency of administrative
frank legal advice is fundamental to actions and decision making within a
the administration of justice public authority  

HIGH HIGH
The advice from the legal officer was
solely for the client and provided in
confidence. Further disclosure  was
not contemplated and is not for third
parties HIGH

The factors against disclosure are all HIGH in terms of maintaining the
exception and there are two factors in favour of not maintaining the
exception and these are both HIGH. In all the circumstances of the case,
the public interest in maintaining the exception outweighs the public
interest in disclosing the information.

In respect of the additional test “would adversely affect”, if legal
advice is disclosed, the disclosure would cause general harm to the
principle of LPP and this on its own is sufficient to meet the “would
adversely affect” test.

Disclosure of part of the legal advice is not a possible consideration
because even partial disclosure is against the principle of legal advice
privilege.

Section 40 – Personal Data

Minor redaction of personal data relating to the correspondents has been
redacted under Section 40 (2) of the Freedom of Information Act 2000.

Section 40(2) provides an exemption from disclosure if that disclosure
would contravene one of the data protection principles in the DPA.   If
the disclosure is unfair then it would contravene the first data
protection principle and the information is exempt from disclosure under
section 40(2) of the FOIA. Even if the disclosure is considered to be fair
and meets a condition in Schedule 2 of the Data Protection Act, the
disclosure must still be lawful in order to comply with the first data
protection principle.

 

The Council considers that the information is exempt from disclosure under
subsection 40 (2) for the following reasons:

 

1.    The requested information is the personal data of a third party,
namely the individual correspondents. The definition of personal data is
taken from Section 1 of the DPA.

 

It is the Council’s view that: - 

 

·         Disclosing the data would be unfair to the individual concerned,
 

·         Disclosure is considered incompatible with the purpose for which
the information was gathered.

 

2.    The Data Protection Act Principles - the council considers that
disclosure will contravene the first data protection principle, which
states that “ personal data shall be processed fairly and lawfully, and in
particular, shall not be processed unless –

 

(a)  At least one of the conditions in schedule 2 is met, and

(b)  In the case of sensitive personal data, at least one of the
conditions in Schedule 3 is also met.”

 

The Council considers that disclosure will be unfair, as the requested
information held in relation to the individual was not intended for wider
public disclosure. 

 

I trust this answers your enquiry.

 

The Council considers that your request has been answered in full by
either confirming that information is not held, providing you with the
information requested, or explaining why any information has been withheld
and the reasons for any redaction.    Where applicable, the Council has
also told you the reasons for the delay in responding to your request.

 

If you are unhappy with the way your request for information has been
handled you can request a review by writing to the Solutions Team within

40 working days from the date of the Council’s response.  You are entitled
to a review by the Council if:

·         You are dissatisfied with the Council’s explanation of why the
application was not dealt with within the 20 working day time limit.

·         All the information requested is not being disclosed and you
have not received an explanation why some information is not being
disclosed.

·         A reason for the disclosures under the request being refused is
not received.

·         You consider that exemptions have been wrongly applied, and/or

·         You consider that a fee has been wrongly applied.

Please set out your grounds for seeking a review together with what
specific part of your request those grounds apply to and the outcome you
are seeking.  The Council reserves the right to ask you for clarification
of the grounds for your review request if the grounds are not clear, and
to delay commencing the review if such grounds are not provided.

 

The Solutions Team can be contacted by email via: 
[1][Cheshire West and Chester Council request email] or at the following address:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

The Solutions Team will acknowledge a request for an internal review
within 5 working days and complete the review as soon as possible and no
later than 40 working days from receipt of the request.

 

More information about the Council’s internal review process can be found
via:
[2]http://www.cheshirewestandchester.gov.uk...

 

If you remain dissatisfied following the outcome of your review, you have
a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [3]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Miriam Wallace

Solutions Team

Cheshire West and Chester Council

 

 

dangos adrannau a ddyfynnir

Dear FOI West,

"...the Council referred to Counsel advice provide by David Holland QC in 2005. This advice was adopted and endorsed by the bailiff industry. The Council also made enquiries of the 3 bailiff companies it uses to clarify the position on bailiff fees in general."

I believe the Counsel advice provide by David Holland QC in 2005 would be this:

http://www.scribd.com/doc/211334487/Ross...

If so, it carries no more weight in the eyes of the law than if it had been produced by a group of drunks in a pub.

In any event, the whole argument revolves around the definition of the term "seized". The case referred to in the 2005 'Opinion' (Evans v South Ribble 1991) which supports the argument that the term also applies to goods kept on the debtor's premises, is completely irrelevant but been exploited to successfully pull the wool over the eyes of local authorities.

Of importance is that "seized goods" can not refer to goods that are seized, via for example, a walking possession agreement (WPA) for the purposes of raising a head H fee.

It is not in dispute that "seized goods" can refer either to goods secured via a WPA or those removed from the debtor's premises, however, those secured by WPA can not be made available for collection, so "seized" – for the purpose of raising a fee under head H – refers only to seized goods which have been removed.

Yours sincerely,

Sacksen Molar

Dear FOI West,

Does Cheshire West and Chester Council have a response to the issues raised in the 15 May 2014 email?

Yours sincerely,

Sacksen Molar

FOI West, Cheshire West and Chester Council

Dear Mr Molar

I can confirm that the Council received your email dated 15 May 2014 and noted the comments but did not consider a response was required as your email contained neither a request for an internal review or a request for recorded information under the FOIA.

Yours sincerely

Solutions Team
Cheshire West and Chester Council

dangos adrannau a ddyfynnir

Dear FOI West,

That is a smart response lol.

Yours sincerely,

Sacksen Molar

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