Different OR's attitudes to cars...and stuff

fiveyearplan

peachyprice wrote: »

Boob reduction by all accounts!

I would think that is essential expenditure!

holchar

Other essential expenditure for Miss Katona is a Personal trainer too!!! How does the poor lil petal manage

blind-as-a-bat_2

peachyprice wrote: »

The only criteria they take into consideration is needing it for work, they cannot (well shouldn't) take a car that would mean you would lose a wage.

Running kids around, elderly rellies, etc. don't count as far as the OR is concerned, regardless of how little a car might be worth.

Your associate was loowed to keep their car because it was needed for work.

I hate reading posts like this (sorry peachy, not meant at you personaly)

whether a car can be seen as exempt HAS NOTHING TO DO WITH NEEDING IT FOR WORK:mad:

It can, and should, be exempt for any reason that a genuine need can be shown, not just "its needed for work"

Diabilaty, living in an area wiyth little or no public transport are just as good a reasons, and if there is public transport available, if it would cost more to use it for your everyday life than running a car would, then the car should be deemed exempt. working has bu gger all to do with it:rolleyes:

Sorry but i did warn you in my the previous two posts

peachyprice

blind-as-a-bat wrote: »

I hate reading posts like this (sorry peachy, not meant at you personaly)

whether a car can be seen as exempt HAS NOTHING TO DO WITH NEEDING IT FOR WORK:mad:

It can, and should, be exempt for any reason that a genuine need can be shown, not just "its needed for work"

Diabilaty, living in an area wiyth little or no public transport are just as good a reasons, and if there is public transport available, if it would cost more to use it for your everyday life than running a car would, then the car should be deemed exempt. working has bu gger all to do with it:rolleyes:

Sorry but i did warn you in my the previous two posts

No need to apologies Bat, I agree with you entirely, but unfortunately there are lots of examiners out there who don't :heartsmil

blind-as-a-bat_2

Exempt vehicles (bankruptcy only)
April 2006

31.2.17 Definition of the bankrupt's estate

The bankrupt's estate comprises all property belonging to or vested in the bankrupt at the commencement of the bankruptcy [note 1] except,

such tools, vehicles and other equipment as are necessary to the bankrupt for use personally be him/her in his/her employment, business or vocation and,

such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his/her family.

subject to certain excluded property reclaimable by the trustee [note 2].

A motor vehicle may be exempted under section 283(2)(a) or under section 283(2)(b) in very limited circumstances (see paragraph 31.2.23.)

31.2.18 Partnerships

The exempt property provisions under section 283(2) do not apply to a vehicle that is the property of a partnership. This is the case when the partnership is wound up an an unregistered company [note 3] in conjunction with petitions presented against the individual members [note 4] or where the individual members petition for their own bankruptcy and there is no petition to wind up the partnership [note 5]. A vehicle belonging to an insolvent member of a partnership personally may be considered as exempt property where that person is also a bankrupt. [note 6].

31.2.19 Bankrupt to be aware of the exempt property provisions

If the official receiver has information to suggest that a vehicle may be exempt, but the bankrupt has made no such claim, the official receiver should draw the bankrupt's attention to the exempt property provisions as set out in the Guide to Bankruptcy.

31.2.20 Motor vehicle not exempt property

The Official Receiver must be satisfied that there are no reasonable grounds for believing that the provisions of section 283(2) apply before taking action to claim or dispose of the motor vehicle for the benefit of the estate. It is important that the Official Receiver believes, and has reasonable grounds for believing, that he/she is entitled to seize or dispose of items which he/she does not consider are exempt property in order to gain the protection afforded by sections 287(4) and 304(3).

31.2.21 Bankrupt claiming vehicle as exempt property

It the bankrupt's responsibility to satisfy the official receiver that a vehicle is exempt property, i.e. that it is necessary for his/her use personally in his/her employment, business or vocation, or is necessary to meet the basic domestic needs of the bankrupt and his/her family. In the case of a claim for exemption to meet domestic needs the official receiver must be satisfied that the motor vehicle is necessary to the extent that no practical alternative exists, to meet a genuine need and not merely a matter of convenience.If the use of a vehicle does not meet the test for necessity the vehicle is vested in the bankruptcy estate and the official receiver as trustee should instead pursue with the bankrupt the option to make a reasonable offer for the purchase of the vehicle (see paragraph 31.2.34).

The bankrupt's claim should be dealt with at the initial interview in either the narrative statement or in supplementary questions to the PIQ.

The bankrupt needs to be able to satisfy the official receiver that the vehicle is both necessary for his/her employment, business or vocation and is necessary personally to the bankrupt. This does not mean that the vehicle must be used exclusively by the bankrupt but it must be necessary to him/her not just to the other users.

Whether or not a vehicle is exempt property is in some cases a difficult question. In such circumstances, official receivers will need to use their discretion and consider each case according to its merits within the guidelines issued to official receivers.In all cases official receivers should apply the guidance strictly and rigorously. It is for the bankrupt to convince the official receiver that any motor vehicle is necessary within the exemptions. The value of the vehicle is not a determining factor.

31.2.22(a) Bankrupt claims he/she needs vehicle for work

When considering whether to exempt a motor vehicle under section 283(2)(a) the principal points to be considered are;

whether the vehicle is used by the bankrupt in his/her employment, business or vocation,

that the bankrupt could not reasonably travel to and from his/her place of employment without a vehicle, due to lack of alternative transport,

that the bankrupt’s prospects of obtaining employment would diminish without use of the vehicle, even though the bankrupt may not be in employment at the date of the bankruptcy order. In such cases, the official receiver will need to decide whether there is a reasonable prospect of the bankrupt obtaining work,

that a self employed bankrupt who does not have work at the date of the bankruptcy order may be able to retain a vehicle as an exempt asset if he/she can satisfy the official receiver that there is a reasonable prospect of him/her obtaining work, and

that the bankrupt’s prospect of obtaining work would diminish even if a vehicle requires repair but will then be used to travel to work or to seek employment.

The bankrupt must satisfy the official receiver that a vehicle is necessary. If the bankrupt cannot do so, and the official receiver has reasonable grounds for believing that the vehicle is not exempt, he/she is entitled to treat the property as part of the estate and deal with it accordingly.

31.2.22(b) Bankrupt is a carer for a relative

Caring for others clearly can be a vocation and the means by which an individual earns their living (e.g. nurses, care assistants) there seems no reason why caring for another, who is in fact a relative, should be treated any differently. There are considerable number of "informal" and upaid carers in the country who would describe their "vocation" as that of a carer. Many may be eligible for a carer's allowance, an income maintenance benefit for those who are required to care for a severely disabled person. The allowance is a taxable benefit for informal carers, payable where the carer looks after a disabled person for at least 35 hours per week.

A bankrupt might therefore not be in paid employment and have no prospect of obtaining employment as a result of having taken on the care of a disabled relative (including a child). In considering whether the bankrupt has a "vocation" as a carer a material issue would be the time involved in undertaking the care, the receipt of any carer's allowance and the level of care required. For example the normal care of a child reasonably expected of a parent is not a "vocation" in this context but a parent caring for a disabled child would fall into this category.

In respect of a claim for a vehicle to be exempted under section 283(2)(a), the definition of "employment, business or vocation" has been widened following recent case law to include debtors who are informal, full-time, carers of a disabled friend or relative who would use the vehicle in connection with that role. The receipt of a carer's allowance is not essential but will be indicative that the debtor is pursuing a "vocation" as a carer.

31.2.23 Bankrupt claims he/she needs vehicle due to disability or for domestic use

A bankrupt may inform the official receiver that he/she suffers from a disability and that his/her motor vehicle is necessary for mobility or inform the official receiver that the vehicle is necessary for domestic use (e.g. to take children to school). The official receiver should treat such cases sympathetically but where the exemption provisions as laid down in the legislation do not apply the motor vehicle cannot be treated as exempt property by the official receiver (see paragraph 31.2.16.)

It is for the bankrupt to convince the official receiver that the motor vehicle is necessary, to the extent that no practical alternative exists, to meet a genuine need and not simply as a matter of convenience. If the use of vehicle does not meet the test of necessity the vehicle is vested in the bankruptcy estate and the official receiver should instead pursue with the bankrupt the option to make a reasonable offer for the purchase of the vehicle (see paragraph 31.2.34.)

For the purpose of determining necessity, a reasonably practical alternative does not mean no alternative. In most cases, a taxi service would offer an alternative to a private vehicle, but it should be borne in mind that the costs of regularly using such a service might well exceed the costs of maintaining a modest vehicle and thus compromise the debtor's ability to contribute to an income payments order/agreement. For example, a task that needs to be undertaken daily might be prohibitively expensive by taxi, but undertaking a weekly shop at the supermarket may well reasonably be achieved by using a taxi service rather than retaining the use of a vehicle.

Where a bankrupt claims to require a vehicle to transport children to and from school, he/she will need to demonstrate that there is no public transport alternative or that the distance to travel would make walking (or cycling) an impractical alternative. It is not sufficient for a bankrupt who lives in a rural area to claim a motor vehicle simply by virtue of distance from the school. The bankrupt must provide a statement that there is no transport alternative (e.g. a local authority school bus service) or, if there is more than one child, show that diverse locations makes it impossible to transport all the children to school by public transport. The practical problems such as organising children to walk to school, to travel with more than one child on public transport, or any general concerns expressed about safety are simply a matter of convenience and in such cases the vehicle is not necessary to meet a basic domestic need. However, if the children attend school in opposite directions and could not physically be delivered at school on time without the aid of a motor vehicle, it might be considered necessary to the household.

It is anticipated that the bankrupts most likely to benefit from the wider interpretation of exempt property, and the claims most likely to succeed, will be from bankrupts who suffer from a disability and state that the motor vehicle in question is necessary for mobility. In such cases, the bankrupt's disability would prevent them from seeking employment. Where this is the case, the official receiver must be satisfied that the vehicle allows the bankrupt a degree of independent living which would be impossible without the retention of a vehicle, and/or that there is no practical alternative to allow the bankrupt to undertake routine medical appointments or care associated with their disability.

In such cases, the vehicle should be used personally by the bankrupt and must not be a vehicle maintained for another's exclusive use with occasional assistance and transportation given to the bankrupt. If the bankrupt requires the assistance of another to travel, even in a motor vehicle, then the vehicle does not come within the exemption. Should this be the case, the main user of the vehicle should be invited to make an offer to purchase the vehicle (see paragraph 31.2.34.)

Bankrupts who live in an urban area with reasonable transport links are unlikely (other than as a result of disability) to be in a position to claim that a motor vehicle is necessary to meet a domestic need. For this reason, a decision that a motor vehicle is exempt property, unless the vehicle is required for employment (see paragraph 31.2.22) or is by reason of the bankrupt's disability, must be confirmed by an assistant official receiver.

31.2.24 Use of discretion

The Official Receiver should use his/her discretion to take action which is practical and expedient but which is also in the interest of the estate and of The Service in keeping administration costs down. The facts should be considered on a case by case basis.


31.2.25 Exempt vehicles of excess value (updated August 2008)

Where an exempt vehicle appears to have a significant value, the official receiver, when acting as trustee, may claim it for the estate if he/she considers that the realisable value of the vehicle exceeds the cost of a reasonable replacement [note 7]. The vehicle must be claimed by notice in writing no later than 42 days after it came to the knowledge of the trustee (in the case of the official receiver, on his/her becoming trustee) [note 8]. Any notice after this time can only be made with the leave of the court. The official receiver should not normally take any steps to claim an exempt vehicle unless the potential net realisation to the estate is at least £500 after taking into account any costs of sale and of a replacement vehicle. A third party contribution equivalent to the net value of the car to the estate may be accepted to avoid the seizure, sale and replacement of the vehicle. This will also need to cover the value of any cherished/personalised registration mark if that is also to be retained by the bankrupt (see paragraph 31.2.25A).

The official receiver will need to consider the nature of the bankrupt’s business in assessing whether a vehicle has excess value since in the past the courts have concluded that a bankrupt could retain a high value vehicle because he/she operated a business which provided chauffeur driven vehicles.



31.2.25A Exempt vehicles with cherished/personalised registration marks (inserted August 2008)

Where an exempt vehicle has a cherished/personalised registration mark, the value of this should also be considered before deciding whether the vehicle is of excess value. The procedure in paragraph 31.2.25 should be followed for claiming the vehicle if the registration mark means that the vehicle is of excess value. If the vehicle in itself is of an acceptable value, then the official receiver could transfer the vehicle back to the bankrupt as a replacement after having dealt with the personalised registration mark. It is possible that the bankrupt may wish to purchase the registration mark with third party funds, and if so the official receiver should consider the offer, see paragraph 31.2.34 for more information. If the vehicle would still be of excessive value without the registration mark, the vehicle and registration mark may either be disposed of together or separately as appropriate.



31.2.26 Provision of a suitable replacement

Where a decision is made to replace an exempt vehicle with a cheaper alternative [note 7] the official receiver should inform the bankrupt of the amount he/she is prepared to make available out of the sale proceeds. The official receiver has discretion as to the amount allowed for the replacement which should be sufficient for the bankrupt to buy a replacement vehicle which is suitable for his/her needs. For consistency between official receiver's offices a guideline maximum figure of £2,000 has been introduced. While official receivers may exceptionally exceed this figure depending on the purpose for which the vehicle is used, it should be adhered to as frequently as possible.

Depending on the circumstances of each case the payment to purchase the replacement vehicle may be made to the bankrupt directly or to the vendor of the vehicle. The most secure way to undertake the purchase is payment direct to the vendor. It is recognised that a bankrupt may be able to obtain a better deal to purchase a vehicle by negotiating a private sale or attending a car auction and in such circumstances immediate access to cash is required. If an allowance from the proceeds of sale is made directly to the bankrupt then the official receiver should request evidence of the purchase of the vehicle within 21 days.

31.2.27 Recording decisions

Any material details, e.g. statements or letters from the bankrupt, notes of telephone calls to or from the bankrupt and a record of the decision reached about the exempt or non exempt status of a vehicle should be recorded on the official receiver’s file. There must be a clear record of the events that occurred so that if difficulties arise later, the papers can be referred to.

Once the official receiver has decided whether the vehicle is exempt, the bankrupt should be notified accordingly [note 9].

Details of the decision to replace the vehicle, any third party offers made (which must be in writing ) and the decision on the offer should be recorded on the case file.

31.2.28 Action by official receiver as receiver and manager regarding exempt property

If a vehicle is considered to be exempt property and it appears likely that an insolvency practitioner will be appointed trustee, the official receiver should allow the bankrupt to keep control of the vehicle, making sure that there is adequate insurance. The official receiver need take no further action pending the appointment of a trustee.

If a vehicle is considered to be exempt property but is of excess value (see paragraph 31.2.25) the bankrupt should only be allowed to keep control and use of it pending a trustee’s appointment if he/she comprehensively insures it, with the official receiver’s interest being noted on the policy, and gives the official receiver a written undertaking that only he/she (the bankrupt) will use it.

Where the vehicle is left with the bankrupt, the official receiver should write to the vehicle’s insurers asking them to note his/her interest and to notify him/her of any activity in relation to the policy. The bankrupt should be notified in writing that he/she cannot validly dispose of property pending the appointment of a trustee [note 10]. He/she should also be informed that although the official receiver has allowed him/her temporarily to retain possession of the vehicle, this in no way binds a subsequent trustee who may take a different view as to whether the vehicle is exempt from vesting or may take a decision to claim it for the estate.

Where proper arrangements cannot, or will not, be made by a bankrupt, the official receiver may take steps to protect a vehicle which is exempt property but which may later be claimed for the estate by a trustee. He/she should arrange for the vehicle to be stored. If the bankrupt makes representations that he/she urgently needs the vehicle, the official receiver should apply to the court for directions, asking for an order enabling the vehicle to be sold on the bankrupt’s behalf and provision of funds made for a cheaper replacement before a trustee is appointed. At this stage the vehicle does not form part of the bankrupt’s estate [note 10] and therefore it cannot simply be disposed of without the sanction of the court.

blind-as-a-bat_2

peachyprice wrote: »

No need to apologies Bat, I agree with you entirely, but unfortunately there are lots of OR's out there who don't :heartsmil

Correction examiners, not OR,s remember the person who deals with the BR is NOT an OR, and can be questioned

There discisions should be checked by someone higher, the question is does that someone have time to look at the case properly porbebly not:rolleyes:

Any discision can and should be challenged if it will cause the BR true hardship, whether that be financial or in any other way.

tigerfeet2006

lisamummytoarchieplusbump wrote: »

mines worth £300 and my nan was down on my forms as a dependant as she aint well enough to go out alone so i take her to all her hospital appoints which are nearly every week and shopping but they still said becasue i dont use it for work i cant keep it

Was just having a quick glance through the information that Bat just post and this stood out to me


31.2.22(b) Bankrupt is a carer for a relative

Caring for others clearly can be a vocation and the means by which an individual earns their living (e.g. nurses, care assistants) there seems no reason why caring for another, who is in fact a relative, should be treated any differently. There are considerable number of "informal" and upaid carers in the country who would describe their "vocation" as that of a carer. Many may be eligible for a carer's allowance, an income maintenance benefit for those who are required to care for a severely disabled person. The allowance is a taxable benefit for informal carers, payable where the carer looks after a disabled person for at least 35 hours per week.

A bankrupt might therefore not be in paid employment and have no prospect of obtaining employment as a result of having taken on the care of a disabled relative (including a child). In considering whether the bankrupt has a "vocation" as a carer a material issue would be the time involved in undertaking the care, the receipt of any carer's allowance and the level of care required. For example the normal care of a child reasonably expected of a parent is not a "vocation" in this context but a parent caring for a disabled child would fall into this category.

In respect of a claim for a vehicle to be exempted under section 283(2)(a), the definition of "employment, business or vocation" has been widened following recent case law to include debtors who are informal, full-time, carers of a disabled friend or relative who would use the vehicle in connection with that role. The receipt of a carer's allowance is not essential but will be indicative that the debtor is pursuing a "vocation" as a carer.

peachyprice

peachyprice wrote: »

No need to apologies Bat, I agree with you entirely, but unfortunately there are lots of examiners out there who don't :heartsmil

Is that better!

Although it isn't necessarily the examiner who interviews you who decides whether or not you het to keep your car, it's discusssed and approved/diapporved by someone higher up the food chain either before or after your interview. In our case cars, IPA, and whether our mortgage/SL payments were excessive were approved before we had our interview.

blind-as-a-bat_2

peachyprice wrote: »

Is that better!

Although it isn't necessarily the examiner who interviews you who decides whether or not you het to keep your car, it's discusssed and approved/diapporved by someone higher up the food chain either before or after your interview. In our case cars, IPA, and whether our mortgage/SL payments were excessive were approved before we had our interview.

The problem is peachy those aprovels MAY be made by those higher up based on there cash bonus's for reaching targets, not the welfare of the BR, its something that seems to be getting lost of late on here, the OR is paid on acheivement, the OR's office is under pressure to cover its costs (at least) from realising its costs from the BR's estate before the creditors even get a sniff at any money collected.

With such a conflict of intrests the OR's office cannot be seen to be acting impartialy as it should, which is why there is no consistancey.

While i agree its not wise to rock the boat for no reason, if the line is crossed it should be contested every time.

Cars are a complicated issue due to liabilaty. If the OR feels the BR can not afford to run a car in a manour that meets the countries law (IE- insurance and MOT maintanence etc), then they have every justification ceasing the car regardless of whether it should be exempt, but if that is not the case, and a reasonable reason for exemption can be proved, as in PixiePie case, how can they justify taking it anyway

Trust me i have seen enough cases where exemption was in no question, yet they claimed it anyway, why, because no one dare insist on the courts making the discision, after all the OR is answerable to the court who apointed them

dubiousone

Hi all. This stuff with the car confuses me a bit. If a car is on HP and finance still owed on it then why under list of assets is a section for cars which has a section to fill in called outstanding finance? I'm not sure whether to list my car which I would like to keep, under assets as there is outstanding balance. However, I was able to keep it with an IVA. I'm confused.....com!