1 Council Tax and Benefits Service Debt Recovery Processes Council Tax and Housing Benefit Overpayments
2 Version Control Version Revised by Date Description 1 Andi Frangeskou May 2015 Original issue 2 3
3 1. Introduction This document sets out Newham s Council Tax and Benefits Service approach in relation to the recovery of unpaid council tax and unpaid housing benefit (HB) overpayments. The document also sets out how we will identify and deal with vulnerable residents, and those experiencing serious financial difficulties. Our aim is to minimise undue stress and hardship on vulnerable people, and to make arrangements which are both affordable and sustainable. The powers for the recovery of unpaid council tax are contained within The Council Tax (Administration & Enforcement) Regulations The powers for the recovery of unpaid HB overpayments are contained within The Housing Benefit Regulations 2006, and The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Overall approach The Council Tax and Benefits Service (CT&B) has a statutory duty to collect monies owing to it and seeks to employ the most cost effective methods of recovery while fully meeting its statutory requirements within the legislative framework. CT&B is also committed to assisting debtors to pay their council tax bills and HB overpayments. This includes: a) Providing debtors with timely and accurate bills, decision notices and invoices (as appropriate) b) Providing debtors with assistance to make affordable payment arrangements based on their financial and household circumstances c) Offering a range of payment options, dates and frequencies when payments can be made d) Signposting debtors to a range of available debt advice and benefits advice e) Referring debtors with serious or multiple debts to our own Debt Advice Team for support, where appropriate Where following these measures council tax bills or HB overpayments remain unpaid, CT&B will use all available powers open to it in order to pursue these debts: Council Tax debts we can summons to Court, and after a liability order has been obtained we can collect through an attachment to earnings/benefits, through enforcement agents, obtain a charging order against property, declare a person bankrupt; in extreme cases imprisonment is also an option HB Overpayments we can recover overpayments from ongoing and future entitlement, collect through an attachment to earnings/benefits, collect through enforcement agents, obtain a charging order against property, declare a person bankrupt, obtain a third party debt order or a County Court Judgment Paragraph 3 of this document sets out the usual stages of collection and recovery of Council Tax due. Paragraph 4 sets out the usual recovery processes for Housing Benefit overpayments. Where we establish that a debtor is vulnerable, or has a vulnerable person in their household, and is deemed unable to manage their financial affairs or not capable of understanding the
4 recovery process or the consequences if a debt remains unpaid, we will aim to work with the debtor in the most appropriate way, based on the individual merits of their circumstances. Paragraph 5 of this document sets our approach to dealing with vulnerable debtors. 3. Stages of Recovery Council Tax At any point, a debtor who is experiencing difficulties with making payments, may be offered an office appointment, or telephone interview if they are unable to attend the office, to discuss the difficulty they are having. The interviewing officer will work with the debtor to come to a mutually agreed payment arrangement. Stage 1: Bill Existing residents are issued with annual bills each year in March. New residents or those who change address will receive a bill shortly after they take up residence. The bill advises, among other things, the availability of and how to claim Council Tax Reduction, and contact details for the National Debt Advice Line. The bill itself includes details of how a debtor can request payment instalments over 12 months or 50 weeks, rather than the default of 10 months, as a way to spread the cost over a longer period.. We offer the following payment method options: Direct debit Online (through the council s website or the person s online banking system) Standing Order Credit or debit card Via the person s bank Via Post Office or PayPoint outlet (using the barcode on the bill) By cheque to be sent to us by post Stage 2: Reminder Where a debtor fails to pay the instalment as it becomes due, they will be sent a reminder notice. This advises them of the amount owing, how to make payment to bring the account up to date, and makes it clear that court action will follow if payment is not made. CT&B will, where it has contact details, telephone or the debtor to remind them of the due payment in an attempt to prevent the case progressing further. The reminder provides the CT&B telephone number and an address for written correspondence so that the debtor can contact us to resolve any issues they may have. If the account is brought up-to-date, the instalment plan remains in place unless two reminders have been issued during that year, in which case the right to instalments is lost. Where appropriate, the payment plan may be amended to make future payments more affordable and sustainable. Stage 3: Final Notice Where a person has failed to pay following a second reminder or has no right to pay by instalments, then a Final Notice will be sent. This requires payment in full within seven days, as failure to pay will lead to the issue of a summons for a liability order. Where the circumstances are appropriate, a further payment arrangement may still be entered into at this stage.
5 Stage 4: Summons Where a debtor has failed to bring their account up to date, a summons for a liability order will be issued along with an arrangement form, giving the debtor a further opportunity to make an arrangement. Where contact is made with CT&B, the debtor has the opportunity to explain any personal circumstances or financial difficulties they may have and to negotiate an arrangement based on these circumstances. The liability order application will generally still go ahead, but no action will be taken to enforce the debt if payments are maintained. Unless agreed otherwise, where the right to instalments has been lost and an amount remains outstanding, a summons will be issued advising that a liability order will be sought from the magistrates court. Additional costs for this summons are added to the amount due. Stage 5: Liability order hearing Council staff attend the magistrates court to assist debtors attending the liability order hearing, with a view to making an appointment to attend the local office to discuss a payment arrangement with an officer. Where the court grants a liability order, there is still a further opportunity at this stage for the debtor to make a payment arrangement or raise any other issues. Stage 6: Liability order A liability order gives the Council certain powers in order to collect the outstanding debt. These are: Power to seek information about someone s income; Power to deduct money direct from earnings Power to deduct money direct from benefits; Power to refer the debt for collection to our appointed enforcement agents Power to declare someone bankrupt; Power to apply to the county court for a charging order against property We cannot apply to the magistrates court to commit a person to prison at this stage. Methods of enforcement Once we have been granted a liability order, we will normally seek to recover the debt through an attachment of earnings or benefits, before we consider referring a debt to enforcement agents. Prior to sending any cases to our Enforcement agents we will write to the debtor to encourage them to contact us to discuss their debt. Attachment of earnings Where a debtor is in employment and those details are available, consideration will be given to deducting instalments direct from wages or salary. The amount to be deducted is worked out by the debtor s employer as a percentage of net earnings, and may vary from week to week or month to month - for instance if overtime is worked. The percentages are set out in law and neither the Council nor the employer can change these levels. In accordance with relevant regulations, councils are not allowed to have more than two such orders in place at any one time. Attachment of certain social security benefits Where a debtor is in receipt of certain social security benefits we can ask the Department for Work and Pensions (DWP) Debt Management Team to deduct payments direct from their benefit.
6 Regulations specify the maximum amount that can be made by way of direct deductions. Deductions made from a debtor s social security benefit are normally sent to us on a monthly basis by the DWP Debt Management Team. The DWP will inform us and the debtor of the weekly deduction being made. If making deductions would leave a debtor without enough money to live on, the DWP will be unable to make deductions and will write to us. We will then contact or write to the debtor with a view to making an alternative payment arrangement. If no contact is made, the account may be referred to enforcement agents. Enforcement Agents We only send cases to enforcement agents where: No arrangement has been made: and/or Alternative ways of collecting the amounts owed, such as deduction from benefit or attachment of earnings is not appropriate Enforcement agents are bound by the Taking of Goods Act (2013) when acting on a case referred to them, and includes the level of fees they can levy on the debtor. Enforcement agents will generally be prepared to enter into a payment arrangement with the debtor during the first or second stage of the enforcement process. Where they are unable to collect the debt in full, the account is returned to us. Where an account is returned to us, we will review it and take appropriate action. This may lead to an application for: Insolvency Charging order Committal to prison In each of the three options stated above, debtors are encouraged to contact us on receipt of summonses or other documents sent to them to discuss payment but clearly by this late stage any arrangement has to take into account the legal process then underway. Insolvency action An application may be made in the High Court for a debtor to be made bankrupt, where we believe they have sufficient assets for the Council to expect payment in full either before the hearing or once assets have been realised. This means that any assets owned by the debtor subject to the order - such as property, shares or savings - may be used to clear the debt. The court costs will be charged to the debtor concerned. Charging order We may make an application to the County Court for a charging order where the debtor owns property. The court costs will be charged to the debtor concerned. Once an entry is made at the Land Registry confirming that the debt has been secured, the property cannot be sold without the council tax debt being paid first. In certain circumstances, statutory interest can also be claimed. Payments can still be made to reduce the debt. If the debt is paid in full, including costs, the charge will be removed. Enforced Sale Where a charging order has been made, we may go on to apply to the County Court for an order for possession and sale, which gives us the power to sell the property at auction. We only seek such an order where the property is not anyone s sole or main residence. Committal
7 Where a liability order has been returned by the enforcement agent and endorsed no effects, an application can be made to commit that debtor to prison. A summons is issued for the debtor to attend the magistrates court to explain why the amount remains outstanding. The options available to the court are: To make an order of imprisonment of a maximum of 90 days, usually suspended on payment of a set amount at intervals set by the court To allow the case to be withdrawn for other actions, for example insolvency, charging order or attachment of earnings To write off some or all of the debt due to an ongoing inability to pay The court costs will be charged to the debtor concerned. 4. Stages of Recovery Housing Benefit (HB) Overpayments At any point, a debtor who is experiencing difficulties making payments, may be offered an office appointment, or telephone interview if they are unable to attend the office, to discuss the difficulty they are having. The interviewing officer will work with the debtor to come to a mutually agreed payment arrangement. The usual stages of recovery are outlined below. Notifying the overpayment Where a debtor has been overpaid HB, a decision notice is sent to them. The decision notice will include, amongst other matters: The amount of the overpayment The period the overpayment covers The debtor s right of appeal The debtor is also advised that they may be able to reduce the debt if they supply evidence of their income and savings for the period of the overpayment. If the debtor does not contact us within one month of the date on the decision notice, recovery action will commence. Recovery of the overpayment We have the power to recover an overpayment of HB by various methods. Only one method at a time can be employed to recover an overpayment. Unlike the recovery process in respect of unpaid council tax, we are not required to go to court before we can employ most of the methods available to us in respect of HB overpayments. The exceptions are charging orders and recovery through civil proceedings. We have the power to change the method of recovery where either the current method is no longer appropriate or possible. For example, we cannot continue to employ recovery by claw back if the debtor ceases to be entitled to HB at a later date, or we cannot continue to take deductions from a debtor s earnings if they cease to be employed. Methods of recovery of HB overpayments We normally seek to recover HB overpayments by claw back from ongoing HB entitlement or by invoice before we consider other recovery or enforcement options available to us, based on the circumstances of each case. a) By claw back We can make weekly deductions from ongoing payments of HB entitlement, whether these payments are being sent to the debtor, landlord, appointee or agent. Maximum amounts of weekly deductions are set by relevant regulations, and uprated annually.
8 Claw back may also be made from a partner s ongoing HB, as long as the debtor and partner were a couple at the time of the overpayment and continue to be a couple whilst deductions are being made. Where we are contacted about the weekly rate of recovery, we can use our discretion to reduce the amount, where we are satisfied that no to do so will cause undue hardship. b) By invoice We can issue an invoice to the affected person, i.e. the person we have decided to recover the overpayment from, for the amount outstanding. The invoice includes details of debt advice services. We offer the following payment method options: Online (through the council s website or the person s online banking system) Standing Order Credit or debit card Via the person s bank Via Post Office or PayPoint outlet (using the barcode on the bill) By cheque to be sent to us by post The debtor has the choice to repay the whole overpayment in one transaction or contact us to make an arrangement to pay it back by instalments. Where repayment is agreed by instalments, we normally seek to set up a standing order with the debtor and for the debt to be cleared within a year. A longer period may be agreed where we are satisfied that no to do so will cause undue hardship. If the debt is unpaid or no arrangement has been made within 14 days after the date of the invoice, we will: Issue a reminder asking for full payment or an arrangement within seven days Issue a final notice after seven days of the reminder asking for full payment or an arrangement within seven days Where contact details are available, an officer will also telephone, or or text the debtor and invite them to pay the overpayment in full or to make an arrangement. If the debt remains unpaid or there has been no contact from the debtor after a further seven days we have the power to apply for a County Court Judgment to enforce recovery of the overpayment by other methods, e.g. bankruptcy, charging order. c) By direct deductions from certain social security benefits Where the debtor is in receipt of certain social security benefits, we can ask the DWP Debt Management Team to deduct payments direct from that debtor s benefit. Such deductions may also be made from benefits payable to the partner, as long as the debtor and partner were a couple at the time of the overpayment and continue to be a couple whilst deductions are being made. Regulations specify the maximum amount that can be made by way of direct deductions. Deductions made from a debtor s social security benefit are normally sent to us on a monthly basis by the DWP Debt Management Team. The DWP will inform us and the debtor of the weekly deduction being made. If making deductions would leave a debtor without enough money to live on, the DWP will be unable to make deductions and will write to us. We will then contact the debtor with a view to making an alternative payment arrangement. d) By an attachment of earnings Where the debtor is in employment and those details are available, consideration will be given to deducting instalments direct from wages or salary.
9 The amount to be deducted is worked out by the debtor s employer as a percentage of net earnings, and may vary from week to week or month to month - for instance if overtime is worked. The percentages are set out in law and neither the Council nor the employer can change these levels. e) From the landlord/agent We can recover an overpayment in respect of one tenant (tenant A) from HB paid to a landlord/agent in respect of another tenant (tenant B), i.e. when the landlord has been classed as responsible for repayment of a debt (sometimes known as Blameless Tenant recovery). When this method of recovery is applied, the landlord/agent must record that HB was in fact received in respect of tenant B. f) Referral to Debt Collection Agency Where there are no assets and payments are not forthcoming, or the debtor cannot be located, the overpayment will be referred to debt collectors who will attempt to locate and contact the debtor. Where possible, immediate repayment or an instalment arrangement will be negotiated. g) From the estate of the deceased Where the debtor is deceased, we may recover the overpayment from their estate. h) County Court Judgement Where all other recovery options have failed to recoup the overpayment, we have the option to apply for a County Court Judgement which can give us further enforcement powers to recover the overpayment from the debtor: Charging Order - where the debtor owns property. The court costs will be charged to the debtor concerned. Once an entry is made at the Land Registry confirming that the debt has been secured, the property cannot be sold without the overpayment being paid first. In certain circumstances, statutory interest can also be claimed. Payments can still be made to reduce the debt. If the debt is paid in full, including costs, the charge will be removed. Attachment of Earnings Order - where the debtor is in employment, the order requires them to provide their employment details to enable deductions to be made direct from their wages or salary, as explained above. County Court Enforcement Agents where the County Court s own Enforcement Agents will collect the debt on our behalf, and includes powers to enter the debtors property and to seize goods. Third Party Debt Order where the debtor has money in a bank or building society, a third party debt order allows us to take money up to the value of the debt directly from the debtors account. i) Write Off Procedure At any stage, an overpayment debt may be considered for write off. The reasons may vary from discretionary write offs to where continuing pursuit of recovery would cause extreme distress and hardship, to untraceable write offs for those debtors who cannot be traced. 5. Statement on Potentially Vulnerable Debtors There is a need for our officers and partners involved in the collection of debt on our behalf to identify those debtors who could be identified as potentially vulnerable. Such debtors may require a different approach in order to take into account their individual financial and personal circumstances.
10 Vulnerability indicators and triggers In the absence of a legal definition of vulnerability we have developed a broad set of indicators which may suggest a person (or a member of their household) is vulnerable, and that vulnerability means they are unable to manage their financial affairs, or unable to understand the recovery process, or the consequences if a debt remains unpaid: Ongoing mental illness/depression Risk of suicide Long standing health condition Learning disability Terminal illness The elderly where it is clear the person is unable to deal with payments Recent life event which has put stress on the debtor and/or the household, e.g. bereavement, separation/divorce The above list is not intended to be a definitive or prescriptive list, and we are committed to treating each case on its merits. We recognise that certain characteristics of a council tax account or benefit claim may suggest vulnerability, e.g. entitlement to a discount based on the presence of a person who has a severe mental impairment, or receipt of a disability related benefit or pension. Adjusting normal procedures Where we have reason to believe a debtor is potentially vulnerable, we will suspend our normal recovery procedures whilst we investigate the particular circumstances of the case. Where a case is with the Enforcement Agent, and they become aware of a potential vulnerability, they will be required to return the case to CT&B. We will then make further enquiries and come to a decision about how the case should be progressed. Where we are satisfied that the debtor is vulnerable, no enforcement action beyond the obtaining of a Liability Order or County Court Judgement will be taken (or enforcement action in progress, e.g. charging order, bankruptcy, will be withdrawn). Consideration will also be given to writing off summons and liability order costs from the debt or withdrawing the County Court Judgement where (because of their vulnerability) we feel the debtor was unable to understand the recovery process or the consequences if a debt remains unpaid. We will seek to make alternative affordable and sustainable payment arrangements with the debtor or their representative/advocate. Reviewing accounts and cases Debtors deemed to be vulnerable will have their accounts or claims flagged as vulnerable on our local system so that officers can easily identify established cases. Where we decide that the vulnerability in any case is not long term or permanent, we will review the debtor s financial, personal and household circumstances at an appropriate interval, e.g. bereavement. Debtors who are not considered vulnerable, but are experiencing serious financial difficulties, e.g. multiple debts, will have their accounts or claims reviewed. We will review their financial, personal and household circumstances at an appropriate interval to determine whether arrangements in place can be modified. Andi Frangeskou CT&B Training Manager 6/5/15
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