Broxtowe Borough Council

Transcription

1 Broxtowe Borough Council Corporate Debt Policy

2 Contents The Policy Aims Page 2 Links to the Council s Corporate Objectives Page 2 The Scope of the Policy Page 2 Income Management Issues Page 3 Priorities of Debts Page 4 Broxtowe s Debt Recovery Procedures and Charters Page 5 Irrecoverable Council Debts Page 8 Irrecoverable Housing Benefit Overpayments Page 9 Code of Practice for Enforcement Agents Page 10 Debt Counselling and Advice Page 13 Appendix 1 Recovery Procedure for selecting cases for Bankruptcy & Charging Orders Page 15 1

3 Broxtowe Borough Council Corporate Debt Policy and Code of Practice The Policy Aims The key aims of the policy are: To ensure a professional, consistent and timely approach to the recovery of all Broxtowe s revenues. To provide a framework for the cost effective pursuance of all debts owed, ensuring that where practical those with the means to pay do pay. To treat individuals consistently and fairly regardless of age, religion, sex, gender, disability and sexual orientation. To maximise revenue collection rates. To ensure that an individual s rights under the Data Protection Act and Human Rights Act are upheld. Links to the Council s Corporate Objectives This policy has been created in the light of Broxtowe s vision, which is to: Provide high quality services to make Broxtowe a place where people want to live and work In furtherance of this vision this policy specifically supports the Council s corporate objectives in respect of: Successful and Inclusive Communities this policy will create a framework for consistent and systematic debt collection methods. Providing High Quality Services this policy will assist with the provision of a high quality revenue collection service. The Scope of the Policy The following debts are covered by this Policy: Council Tax National Non Domestic Rates (NNDR) Housing Rents and Garage Rents Housing Benefit Overpayments Sundry Debts 2

4 Income Management Issues For the purposes of the policy a debt shall be defined as any amount of council income that has not been paid by the due date. There is a number of different debts and these have different enforcement methods in respect of the court that a debt is referred to and the recovery methods that can be lawfully employed. Not all debts are held on the same computer system and in the case of sundry debts these may be being dealt with by the Financial Planning division of the Finance Directorate or the Legal and Administrative Services Directorate. The Exchequer Division of the Finance Directorate is responsible for the collection of the largest proportion of all the council s revenues. The governing principle in the management of Broxtowe s income is that the Director of Finance should have the final decision on recommending appropriate recovery action. Should a debtor fail to pay an account via the standard payment procedure, then the approved debt recovery procedure, applicable to the type of debt, shall be instigated. Recovery procedures may involve such action as: agreement of extended instalment period seizure of goods supplied withdrawal of service(s) provided imposition of interest charges or other prescribed and approved penalties in the case of a deceased debtor, registering an interest in the estate and making a claim through the executors use of Council employed debt collectors use of an officially appointed debt collection agency use of legal instruments such as attachments to earnings or other Entitlements court action bankruptcy and liquidation proceedings. charging orders possession or eviction proceedings in the case of council tenants other officially recognised and approved methods. 3

5 Priorities of Debts The Council has to be realistic in its aims for recovering debt and may have to prioritise recovery for those citizens with multiple debts. This has to always be seen against the imperative that the Council maximises its income and does as much as is possible to ensure that everyone contributes appropriately for their public services. The Council considers that customers have a responsibility to pay any monies due and the highest priority should be given to debts which will maintain a person s home and protect their livelihood i.e. rent, mortgage payments, council tax and non domestic rates. Factors to be considered when determining the relative priority of debt when seeking repayment include: the stage in the recovery process reached the consequences to the debtor of non-payment of each of the debts the requirements and the resources of the Council for collecting each individual type of debt the age of the debt and the facility of its recovery the priorities of the Council itself in relation to income collection whether the debt is part of an ongoing liability or whether it is finite the wishes of the debtor. Other individual circumstances will be taken into account in determining the most appropriate recovery actions. These can include: personal circumstances of debt, such as age and health any repetitive nature of recovery action necessary ability of the debtor to make repayment. 4

6 Broxtowe s Debt Recovery Procedures and Charters The following extracts are taken from the Council s procedures and charters for debt recovery including specific aspects in relation to council tax, business rates and council house rents. General You will be sent a full reply to your correspondence or a written acknowledgement within 7 calendar days of receipt. Your enquiries will be dealt with by a fully trained member of our team. You can also make an appointment for an interview with a specific officer if you wish and you may request this takes place in a private interview room. If you are not satisfied at any time during the interview you may ask to speak to a more senior officer. You can request a personal call to your property if you are elderly or disabled. The visit will be made within 2 working days of the request or at a specific date and time if you wish. All visiting officers carry identification. Council Tax/Business Rates All annual bills will be issued before 1 April each year. A reminder will be sent to you if an instalment is missed. If you make full payment on a reminder and subsequently miss another instalment you will be entitled to one further reminder notice. If you fail to make payment or part payment, no further reminder will be issued before recovery action proceeds. Reminders, final notices, summonses will be issued regularly and systematically on a monthly basis to conform to a process of monthly courts. The Council will contact those of you who occupy newly constructed dwellings within 7 working days of you notifying the Council of such a change, to offer you a facility to make payments on account in advance of the Valuation Office Agency banding your home. The Council will endeavour to update its records within a maximum of 7 working days of receiving information of a change in occupation, in order that a revised bill or refund may be issued to you. The Council will send documents to enable you to pay by direct debit within one working day of a request being received. You will be notified of amounts and due dates 14 days in advance of the first instalment becoming due. For accounts where refunds become due, provided all supporting information and documentation has been received, refunds will be issued within 10 working days. 5

7 The Council will issue a fresh application form on an annual basis to all customers entitled to disabled persons relief. The Council will provide easy to follow forms and documentation which explain the legislation fully and concisely. The Council will endeavour to ensure that all arrears cases referred to the Recovery Section are contacted within 14 calendar days of the arrears arising. The Council will ensure that all legal applications and attendances at court are made and conducted in a legally correct and efficient manner and the resulting decisions are acted upon within 14 calendar days where appropriate. Where the Council decides to deduct any arrears from your earnings or Income Support/Job Seekers Allowance (income based) you will be written to within 7 days. You will be given a further 14 days to make a satisfactory offer of payment. If you do not, your employer/benefits Agency will be instructed to make deductions. The Council will ensure that the Council's enforcement agents are monitored and close liaison is maintained throughout their contract to ensure that they operate in accordance with the agreed Code of Practice (see page 11). The Council will always inform you prior to the enforcement agents being instructed to collect any arrears. Rents It is the Council s aim to avoid the eviction of our tenants and, with that in mind, it willl attempt to maintain contact throughout the recovery process and is prepared to make reasonable arrangements to see the debt maintained and cleared. Should the Council have to take eviction action, it will liaise with the Council s homelessness section to mitigate the effects of the eviction. Eviction action will only proceed with the written authorisation of the Director of Housing and the Director of Finance or their properly delegated officers. The rents recovery process An arrears letter will be sent when there is a balance on the rent account at the end of the fortnightly rent cycle. A second letter will be sent after two weeks if a balance is still outstanding on the rent account. A notice of seeking possession or notice to quit will be hand delivered when a minimum of 4 weeks net rent is outstanding. 6

8 The Council will conduct a visit 2-3 weeks after a notice has been issued if the tenant has made no contact or has not kept to an arrangement. A pre court letter will be sent if balance remains outstanding and no arrangement for payment in place two weeks after the post notice visit. Throughout the arrears enforcement process, if it is believed that it is appropriate, the tenant will be visited with a view to avoiding the next stage of recovery action being taken. Once the court has made an order, the Council is bound by the instructions of the court and are committed to adhere to these instructions. Arrangements can be made at any time, however, if an account is showing to be at the court stage (and a court date is shown in the notebook) or beyond, check with a senior officer before entering into an arrangement to confirm court costs, warrant fees, etc. 7

9 Irrecoverable Council Debts Where feasible, payment for goods or services provided by Broxtowe shall be received in advance, thus avoiding expensive administration costs and the need to potentially take recovery action against any unpaid debts. Where a debtor account has been raised, every reasonable effort shall be made to collect it in full, within the prescribed time-scale and in the manner approved by the Council. When all possible means of recovery have been exhausted, or it becomes apparent that the debt cannot be recovered economically, or without causing undue hardship, then the outstanding balance may be submitted to the Council (or those with delegated authority) to be declared as irrecoverable. All actions relating to irrecoverable debts shall conform to the Council s constitution and any appropriate legal requirements. These procedures shall be approved by the Director of Finance and shall only be amended with his/her approval. Unpaid debtor accounts shall be subjected to the approved debt recovery procedure applicable to the type of debt concerned, having regard to the reasonableness of any repayment period. Debts that have been remitted by a court shall automatically be deemed irrecoverable and shall be reported (through the Director of Finance) to the cabinet. In considering whether a debt should be declared as irrecoverable, the cabinet, or those delegated with appropriate authority, shall treat each case in a fair and just manner, taking into account all relevant factors before reaching their decision. In considering a debt as irrecoverable, those making the authorisation shall be satisfied that: all reasonable effort has been made to recover the debt the action will not create an inappropriate precedent for the treatment of other debts or debtors the action is legal and in agreement with the Council s constitution the action will not affect any ownership rights that the Council may hold regarding land or property to which the debt relates. Only debts that have received formal approval (either by cabinet or under delegated authority) shall be deemed irrecoverable. Where an amount has been written off as being irrecoverable and it subsequently becomes collectable again (e.g. a missing debtor is traced), then the debtor account shall be resurrected and discharged by way of payment. 8

10 Irrecoverable Housing Benefit Overpayments Housing benefit overpayments shall be treated the same as any other debt to the Council and collected using whatever means are available. However, consideration shall be given to the following before pursuing recovery: The individual debtors circumstances and their ability to pay Determination of the cause and classification of the overpayment and whether the amount should be deemed recoverable in accordance with housing benefit regulations Determination of who is responsible for any recoverable debt, the landlord (or landlady) or the tenant (benefit claimant). Amounts due from landlords shall be recovered through standard procedures and any unpaid amounts considered in the same way as any other type of debt. Amounts due from benefit claimants shall be recovered in the same way, but a degree of tolerance shall be applied to the extent required by individual circumstances as specified in the Housing Benefit and Council Tax Benefit Overpayment and Recovery Policy Statement. Where it is decided that the debt can be recovered, then every effort shall be made to recover the full amount. Where a Benefit Appeals Tribunal has determined that the overpayment shall not be recovered, then the amount shall automatically be written-off and reported (through the Director of Finance) to the cabinet for note. Where circumstances dictate that it is not practical to pursue full recovery, then as much as possible shall be recovered and the uncollected balance may be considered to be irrecoverable. 9

11 BROXTOWE BOROUGH COUNCIL CODE OF PRACTICE FOR ENFORCEMENT AGENTS 1) Enforcement agent firms and enforcement agents contracted by Broxtowe Borough Council to undertake specified tasks will be required to ensure that they, their employees, contractors and agents comply with the following Code of Practice at all times. 2) The enforcement agent firm will ensure that all employees, contractors and agents will at all times act within the scope of current legislation and ensure that all notices and other documentation left with or sent to the debtor are neither ambiguous nor misleading. 3) The enforcement agent firm will ensure that all enforcement agents, employees, contractors and agents have an appropriate knowledge and understanding of relevant legislation and powers. Where necessary, the enforcement agent firm will ensure that adequate training is available. 4) Enforcement agents and employees, contractors and agents of the enforcement agents firm will act in a responsible and courteous manner and will act in the interests of Broxtowe Borough Council at all times. 5) Representatives of the enforcement agents must be aware that they represent Broxtowe Borough Council in their dealings with debtors and should act accordingly at all times. 6) The enforcement agent firm will maintain an acceptable standard of dress among all employees, contractors and agents, consistent with the provision of a professional service. 7) All enforcement agents carrying out the lawful act of taking control of goods shall hold a current enforcement agent s certificate issued by the county court. The enforcement agent firm will ensure that the removal of goods is always directly supervised by a certificated enforcement agent. 8) Broxtowe Borough Council will appoint a supervising officer, who shall be a senior member of staff, to liaise with enforcement agents and the enforcement agents on all matters. The supervising officer and the principal of the enforcement agents shall be responsible for the operation of this Code of Practice and for resolving any complaints from debtors. 9) The enforcement agent firm must establish and maintain an internal complaints procedure overseen by a senior member of staff. Broxtowe Borough Council's supervising officer shall be responsible for ensuring that any complaints received from debtors or their authorised representatives by Broxtowe Borough Council are handled efficiently and promptly. 10) The enforcement agent firm will bring to the attention of the supervising officer cases which are felt to be inappropriate for taking control of goods action in accordance with this code of practice, and will seek further instructions before proceeding. 10

12 11) The enforcement agent and the enforcement agent firm will, on returning any un-executed liability orders, report the reason(s) why taking control of goods has not taken place, together with any other additional information that is relevant. 12) The enforcement agent and the enforcement agent firm shall ensure that all information coming into their possession during the performance of the contract is treated as strictly confidential and is not to be used for any purpose other than performance of the contract. All data will be handled in strict accordance with the Data Protection Act ) The enforcement agent firm must ensure that its employees use the title enforcement agent' only in appropriate work (for instance, not when acting as debt collectors or tracing agents). Enforcement agents must not misrepresent their powers, qualifications, capacities, experience or abilities. 14) The enforcement agent firm must declare all associated interests of companies, firms, associations and groups to Broxtowe Borough Council. 15) The enforcement agent firm will answer all correspondence from debtors within 5 working days of such being received, wherever possible. 16) Copies of the Code of Practice must be freely available from the offices of both Broxtowe Borough Council and the enforcement agent firm. A copy of the code must be given to each person who complains, or enquires how to complain, to the enforcement agent, the enforcement agent firm or Broxtowe Borough Council. 17) Enforcement agents must carry their identity card and their authority to take control of goods at all times and show them to the debtor when attending to take control of goods. 18) Enforcement agents must whenever possible verify the amount outstanding, explain fully the opportunity for making payment and make it absolutely clear that immediate payments in full, by cash, will stop further action. 19) Enforcement agents are to have a basic understanding of benefit application processes and sufficient training to recognise potential benefit cases. 20) Enforcement agents are to fully explain the consequences of non-payment. 21) Enforcement agents are to make it clear, when appropriate, that only the goods of the person named in the Liability Order should be taken control of. 22) Enforcement agents are only to call between the hours of 07.30am and 09.30pm Monday to Saturday except with the prior authorisation of the Council. 23) Where taking control of goods is to take place and those that are identified as exempt goods as prescribed in the Taking Control of Goods regulations, then those items may not be taken. 11

13 24) In all cases of alleged payment, the enforcement agent must contact or report back to Broxtowe Borough Council immediately. 25) Close liaison between Broxtowe Borough Council and the enforcement agent is of paramount importance throughout all operations. This is particularly important in cases of a sensitive nature or where hardship is apparent and in all such cases Broxtowe Borough Council must be appraised of the situation as soon as it becomes apparent. Sensitive cases include the following situations: A Pensioner A disabled person Long term sickness or serious illness A recent bereavement A single parent family Pregnancy The rate or chargepayer does not understand English Learning difficulties Mental illness Severe financial hardship 26) In the event of any uncertainty over a forwarding address Broxtowe Borough Council must be contacted immediately. 27) Notwithstanding the difficulties, Broxtowe Borough Council requires enforcement agents to make reasonable efforts to contact debtors personally. In all cases entry onto or into a property for the purpose of fulfilling the obligations under the contract between the Company and the Council, shall be undertaken without force or intimidation and in as amicable a manner as possible. 28) No constructive taking control of goods are to be attempted. 29) Where it is necessary to enter the property of a third party, access must only be achieved by express consent. When such access is denied the Liability Order must be returned to the office. 30) Enforcement agents are to comply strictly with the Broxtowe Borough Council guidelines regarding arrangements for "staged" payments by defaulters. If enforcement agents consider the debtor genuinely cannot pay in accordance with the said guidelines, then the Council is to be contacted for further/revised guidelines. 31) Advanced notice of visit schedules are to be supplied to Broxtowe Borough Council. 12

14 Debt Counselling and Advice Council employees will give advice if requested on the payment outstanding debts but they do not provide a comprehensive debt counselling service. Council employees will refer customers to the Council s benefit employees at the customer s request or where it appears that they may be entitled to housing benefit or council tax benefit. Customers may want to get independent advice if the enforcement agents are involved or if they wish to discuss debts and general money advice. For customers who want free, confidential and independent advice, they can contact one of the free advice agencies shown below:- Citizens' Advice Bureau Council Offices Foster Avenue Beeston Nottingham NG9 2PA Tel: Web: Citizens' Advice Bureau Wellington Place Eastwood Nottingham NG16 3GB Tel: Tel: Web: Consumer Credit Counselling Service Wade House Merrion Centre Leeds LS2 8NG Tel: Web: Nottingham Credit Union 69 Maid Marian Way Nottingham NG1 6AJ Tel: info@nottinghamcu.co.uk Web: 13

15 Nottinghamshire Welfare Rights Service County Hall West Bridgford Nottingham NG2 7QP. Tel: Minicom:

16 APPENDIX 1 Recovery Procedure for Selecting Cases for Bankruptcy & Charging Orders 1. Bankruptcy is a valid and important tool available to billing authorities in the enforcement of unpaid Council Tax and National Non-Domestic Rates. It is acknowledged that it is not an appropriate method that is suitable for use in every debtors circumstances. This section looks at when bankruptcy is likely to be considered the most suitable method of enforcement. 2. Because of the costs and effects of taking bankruptcy proceedings each case will be considered carefully on its merits. It is very unlikely that bankruptcy will be considered a suitable recovery method unless enforcement agent action has already been attempted. Bankruptcy will only be considered where the debt or debts outstanding are substantial even after any enforcement agent action has ended. 3. When a case is returned from the enforcement agent, consideration shall be given as to whether the Council has employment details available, or whether they could reasonably be obtained, and whether the debt can realistically be recovered via an attachment of earnings or by an attachment to the debtor s benefit. 4. Bankruptcy is usually considered after cases have been returned as unsuccessful by the enforcement agent. Bankruptcy will not be appropriate where it is considered that an attachment to benefits or earnings could be effective. Bankruptcy will be considered alongside committal proceedings and charging orders. Factors to be taken into account in deciding which method to employ will include: the level of debt, whether the debtor owns property or other assets, the extent to which the debtor has co-operated with the council and the employment status of the debtor. 5. Accounts to which the Council has not received a response are then targeted based on the balance outstanding. The Council would normally select people with debts outstanding of over 2, In cases where it is considered that bankruptcy is the most suitable recovery method, the following action should be followed: a) Check that the accounts have previously been passed to an enforcement agent company and an appropriate nulla bona certificate has been obtained. b) Ensure the total of the debts outstanding is above 2, c) Check the internal systems to see if employment details can be found or check to see if the person is on a suitable benefit for deductions to be made. d) Check the case for any correspondence on file to suggest that the person is considered vulnerable or that the property is already up for sale or may be up for sale in the near future, in which case a charging order may be appropriate. 15

17 e) Confirm that the Council has information that suggests that the person owns the property that he/she lives in, if not, the case is not suitable for bankruptcy. f) If no information is known then it may be appropriate to send a letter to Adult Social Services and check if the debtor is known to them. The debtor may bereceiving care/treatment which would make bankruptcy action inappropriate and have a detrimental effect on the person. 7. Once an appropriate selection of cases has been made a request is sent to the Council s chosen insolvency advisors. This is a firm of insolvency practitioners who assist local authorities in determining whether bankruptcy is a suitable option to secure outstanding Council Tax/Non-Domestic Rates. 8. A report is put together by the advisors using the land registry and credit referenced reports. 9. The report sent to the advisors takes the form as shown below: LIABILITY ORDER NAME ADDRESS DATE AMOUNT TOTAL Reports normally take 7-14 days to be processed and returned to the Council. 10. Once the reports are received, the Council will select the cases that are suitable for bankruptcy on the basis of equity that is potentially available in relation to the debt outstanding, taking into consideration the fact that fees incurred can range from 10,000 to 20,000 or more depending on the complexity of the case. 11. A letter will be sent to the persons that are judged to be suitable for bankruptcy, advising that unless the debt is paid or suitable payment arrangements made and adhered to then the Council will instigate bankruptcy proceedings. This could result in the loss of their home and they would incur substantial fees. A leaflet produced by the UK Insolvency helpline would also be sent with the letter. This letter will be delivered by hand to the last known address. 12. If no response is received to this letter after 14 days then a checklist is completed which details history of the case, checks that have been made such as Adult Social Services and a decision on the action to be taken. The checklist is authorised by the Chief Revenues Officer. Cases will then be sent to a firm of solicitors specialising in insolvency matters for them to issue a further warning letter prior to issuing a statutory demand. 13. On service of the statutory demand the solicitor s guidelines are to make an arrangement if offered not exceeding 3-4 months. If no contact is made the solicitors will contact the Council and seek authority to issue the bankruptcy petition. 16

18 14. When considering bankruptcy as a method of enforcing Council Tax, this is usually after enforcement agents activity, however the Council would still be prepared to instigate insolvency proceedings at an earlier stage once a liability order had been obtained if circumstance dictated that it was the appropriate action to take. 15. Consideration is normally given to bankruptcy proceedings for debts in excess of 2,000.00, however, the process would be considered for debts lower than this figure if it were considered to be the appropriate method of enforcement. 16. Charging Orders are a potential method of securing a Council Tax debt which is in excess of 1, and provided that the property upon which the liability order is outstanding is the same as the property upon which it is sought to impose the charge. Charging Orders may be considered as an alternative to bankruptcy in some cases. The practical problems in enforcing the Charging Order as well as the exposure to cost and risk for the Council, notwithstanding the probable on-going accrual of Council Tax, may outweigh the advantage of the process and should be considered carefully. 17