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...for greater awareness among the public of their rights when dealing with Bailiffs and DCA's ?
I recall the CAB starting a campaign asking for greater Government action and tighter regulation of Bailiffs and DCA's back in 2006. But have heard nothing of what happened with this campaign since. Does anyone have an update on this campaign and it's progress ?
If it stalled, then maybe it is time that the campaign was revived somehow, especially in light of so many people now falling foul of these 'leeches' with their lies, threats and intimidation since the financial crisis took a grip on this and other countries throughout the world. It seems to me that these 'people' are the only ones who are making money in the current climate (a lot of money at that), and in many cases money they are NOT entitled to (am thinking of the exhorbitant 'Admin Fees' and 'Visitation Fees' for example that they often try to levy).
A lot of excellent advice is dispensed from this site (and others) on what your rights are when dealing with Bailiffs/DCA's, but I am sure that many members of the public (who do not know of sites such as this) are completely unaware of what their rights are and cave in to the threats they receive from such people.
I was reading the papers today about Loan Sharks and their behaviour, and it strikes me that, from personal experience and reading the many horror stories on here, Bailiffs and DCA's often use very similar tactics (short of using violence). The only difference being that Loan Sharks are illegal whereas Bailiffs & DCA's are not.
For those who don't know what I am talking about, the following is the text that the CAB published at the time (2006).
A CAB campaign on bailiff regulation
September 2006
Background briefing
Introduction
Citizens Advice Bureaux have been reporting the problems experienced by clients as a result of bailiff action for many years. The widespread use of bailiffs by local authorities since the introduction of the community charge and its successor the council tax has added to a weight of evidence pointing to the need for a complete reform of bailiff law. The government has now published a Draft Tribunals, Courts and Enforcement Bill, which aims to introduce a single procedure for taking control of goods. Unfortunately, the government has dropped from the draft Bill any plans to regulate the activities of bailiffs even though the legislation, if enacted, will give them added powers. We think this is unacceptable, given the outrageous practices by some bailiff firms reported in the evidence sent in by bureaux.
This campaign seeks to raise awareness of the problems experienced by CAB clients when bailiffs are used to collect unpaid council tax, improve local authority practice in this area, and lobby MPs on the need for a regulatory framework to be included in the Draft Tribunals, Courts and Enforcement Bill.
Campaign aims
·To work with local authorities to improve the practices of bailiffs collecting council tax.
·To lobby MPs on the need for bailiffs to be regulated.
Timescale
The campaign will be launched at the Citizens Advice Conference and AGM in York in September 2006. Campaign activities will be carried out between October and December 2006 but local bureaux may continue working with their local authority to improve bailiff practices after this date.
Briefing
Why is this an important issue?
The use of bailiffs to enforce debts by seizing goods has long been the most effective and controversial method of debt collection available in English law. The law as it stands today - a mixture of common law, statute and case law, some of which dates back to medieval times - is archaic, complex and confusing, and in urgent need of reform, a need that the passing of the Human Rights Act has only served to emphasise.
For many years, Citizens Advice Bureaux have reported a wide range of problems experienced by clients as a result of bailiff action. Since the introduction of the community charge in England and Wales in 1990, and its successor the council tax in 1993, this volume of evidence has grown[1]. Citizens Advice has published a series of evidence reports, culminating in Undue Distress in 2000, highlighting the distress and misery experienced by CAB clients as a result of bailiffs using distress to enforce debts, including council tax arrears. These problems have been compounded by the absence of effective independent monitoring, complaints monitoring and mechanisms for redress.
In 1998, the government announced an Enforcement Review. Three years later, it published a Green Paper, Towards Effective Enforcement, which took forward most of the recommendations contained in Professor Jack Beatson’s Independent Review of Bailiff Law. The Green Paper proposed that there should be a single piece of legislation governing the seizure of goods, a new fee structure, and a commission to regulate all bailiffs. In 2002, the National Standards for Enforcement Agents, a set of minimum standards with which all bailiffs are expected to comply, were introduced as a stopgap measure in the absence of any new legislation. However, compliance with the standards is not monitored and they do not include any complaints or appeals procedures or provide any accessible means of redress. The following year, the government published a White Paper, Effective Enforcement, which followed the Green Paper in proposing a complete reform of bailiff law and a new, unitary system of regulation, powers and fees.
Finally, on 25th July 2006, the government published a Draft Tribunals, Courts and Enforcement Bill, which includes a single procedure for taking control of goods. However, proposals to regulate the activities of bailiffs were shelved for the time being. The notes to the Bill state:
Effective Enforcement … identified that persons who currently take control of goods are not subject to any uniform regulatory system and highlighted anecdotal evidence of some enforcement agents threatening and intimidating vulnerable debtors. Effective Enforcement therefore proposed a system to guard against malpractice and to protect debtors. It was initially intended that a licensing regime should be put in place, implemented by a regulatory body. While this remains the Government’s long-term aim, as an interim measure the Bill replaces (and extends and modifies) the certification process that currently exists for bailiffs under the Distress for Rent Rules 1998.
This retreat from giving protection to vulnerable debtors occurs at the same time that the Bill gives bailiffs the right to apply to the court for the power to use reasonable force to enter premises. This discretionary power, if exercised, will mean that debtors will no longer be able to refuse bailiffs entry. It will inevitably mean that even more CAB clients will be reporting problems about bailiffs to bureaux.
What problems are bureaux reporting?
Bureaux have been reporting a wide range of problems experienced by clients because of bailiff action to collect unpaid council tax. The most common kinds of problems are:
Misrepresenting powers of entry
Bailiffs collecting council tax have no power to force initial entry or break open an outer door if it is either locked or bolted. They must enter a property peacefully through an unlocked door or through an open window. They may not enter through a closed window, even if it is not locked. They cannot obtain a court order to gain entry and the police have no power to force entry on their behalf. Bailiffs can only force entry if they have previously gained peaceful entry.
However, bureaux have continued to report problems with bailiffs misrepresenting their powers of entry, falsely claiming that they can force entry or have a warrant that allows them to force entry or that they will return with the police who will force entry on their behalf.
This problem has been further complicated by the implementation of Section 27 and Schedule 4A of the Domestic Violence, Crime and Victims Act 2004, which, since 18 July 2005, have allowed bailiffs to force entry in connection with unpaid magistrates’ courts fines. Bureaux have reported that some bailiffs’ firms have claimed that this power extends to other debts, including council tax arrears. This is not the case.
Threats of imprisonment
Bureaux have reported that bailiffs have threatened clients with imprisonment if, for example, they do not allow the bailiffs entry to the debtor’s home.
A debtor cannot be sent to prison for refusing to allow the bailiffs entry. In fact, the debtor is entitled to refuse the bailiffs entry and is allowed to use reasonable force in resisting bailiffs who have unlawfully tried to push their way in.
A debtor can only be sent to prison for council tax arrears if (i) the local authority decides to apply to the magistrates’ court for a means enquiry hearing, (ii) a means enquiry hearing is then held at the magistrates’ court, (iii) the magistrates decide that the debtor has either wilfully refused or culpably neglected to pay, and (iv) the magistrates have examined all the other payment methods available but found that none will be effective.
Unlawful fees
The fees that bailiffs are allowed to charge are set by statute and are included at the end of this briefing.
However, bureaux have reported a variety of problems about the fees charged by bailiffs. These include fees being charged when they:
·Are not permitted, e.g. when no levy has been made (see the glossary in the resource materials section of this campaign pack for definitions of some of the terms used)
·Are spurious, e.g. ‘administration’ and ‘clamping’ fees
·Have not been “actually and necessarily” incurred, and
·Are unreasonable and disproportionate to the amount of the debt being collected
Under the National Standards for Enforcement Agents, bailiffs must provide a breakdown of the fees charged if this has been requested. Advisers can use this breakdown to challenge any unlawful fees.
Harassment and intimidation
The National Standards for Enforcement Agents states that “Enforcement agents must carry out their duties in a professional, calm and dignified manner. They must dress appropriately and act with discretion and fairness.”
Many bureaux, though, have reported alarming instances of bailiffs harassing and intimidating clients, a problem exacerbated by the lack of effective independent monitoring, complaints monitoring, and clear and accessible mechanisms for redress.
Problems negotiating repayment
Private bailiffs collecting council tax need to have a reputation for effective enforcement in order to continue to receive business. They also want prompt payment of their fees. For these reasons, it is in their interests to get the debtor to pay as near the full amount due as possible, as quickly as possible. This situation is further complicated by the way in which the contracts between local authorities and bailiff firms seem to vary from district to district. Many bureaux have reported problems when trying to negotiate realistic, affordable repayment plans with bailiffs. Local authority contracts very often tie bailiffs in to a short collection period. However, local authorities will very often permit bailiffs to vary this if, e.g. the debtor is in receipt of Income Support or Income-based JSA. Despite this, bailiff firms frequently demand payments of £50 per week even when authorised to accept less. These problems are likely to increase if bailiffs are to be allowed to force entry to take control of goods.
Protected goods
Certain goods are protected and cannot be seized by the bailiffs. The statutory definition of protected goods is included in the resource materials section of this campaign pack. However, many bureaux have reported problems with bailiffs either threatening to remove or actually removing protected goods.
Third party goods
The council tax regulations make it clear that bailiffs can only seize and remove goods belonging to the debtor. However, many bureaux have reported problems with bailiffs removing the goods of third parties, including those belonging to family members, flatmates, and landlords, as well as those subject to hire purchase and hire agreements.
Vulnerable situations
The National Standards for Enforcement Agents, published in 2002, contains guidance on how bailiffs should deal with vulnerable and socially excluded people. The guidance is included in this campaign pack. However, bureaux routinely report cases in which bailiff firms have failed to adhere to the guidance.
What would Citizens Advice like to happen?
·We believe that the regulation of bailiffs is essential to protect the interests of vulnerable debtors and to ensure that all bailiffs are properly controlled and accountable.
·We also consider that the passing of the Human Rights Act has made the need for bailiff regulation even more important, given the way in which harassment, intimidation and unlawful entry can all be serious breaches of the Act. We would therefore like to see a regulatory framework included in the Draft Tribunals, Courts and Enforcement Bill.
·We are also concerned that at present it is very difficult for debtors to complain or appeal against the activities of bailiffs, e.g. the National Standards for Enforcement Agents do not include complaints or appeals procedures and compliance against the standards is not monitored.
·We believe that there should be clear, transparent and accessible mechanisms available to debtors for making complaints against bailiffs, with effective remedies against bad practice including harassment and intimidation.
·We believe that these complaints and redress mechanisms should form part of this regulatory framework.
·We believe that regulation should be independent and impartial and would therefore like to see a statutory body such as the Office of Fair Trading responsible for regulating the activities of all bailiffs.
What is Citizens Advice doing about this on a national level?
·We will be lobbying MPs on the need for bailiffs to be regulated and for a regulatory framework to be included in the Draft Tribunals, Courts and Enforcement Bill.
·We will be using the evidence gathered by bureaux to formally respond to the consultation on the Bill
The Draft Tribunals, Courts and Enforcement Bill can be viewed and downloaded from the Department for Constitutional Affairs website: www.dca.gov.uk.
Useful terms
Protected goods
The definition of protected goods (i.e. goods which cannot be seized by the bailiffs) for unpaid council tax is: -
‘such tools, books, vehicles and other items of equipment as are necessary to the debtor for use personally in his employment, business or vocation’ and ‘such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the debtor and his family’
Scale of fees and charges
In council tax arrears cases, for each liability order where no levy is made, £22.50 for the first or only visit, and £16.50 for a second visit. No charge can be made for subsequent visits.
For levying distress, the following fees may be charged (or a lesser amount if that would be reasonable): -
[Table]
Where the sum due is £100 or less
22.5%(£22.50)
For the next £400
4%
For the next £1,500
2.5%
For the next £8,000
1%
For any additional sum
0.25%
The charges in council tax arrears cases are as follows:
[Table]
Walking possession
£11
One attendance with a vehicle with a view to removal of goods where, following the levy, goods are not removed
Reasonable costs
Removal and storage of goods
Reasonable costs
Valuation
Reasonable costs, but no charge can be made unless the client has been advised beforehand of the charge and how it is calculated
Sale
Up to 15% of the proceeds of sale if the sale is held on auctioneer’s premises, plus reasonable out-of-pocket expenses and reasonable advertising costs. Where the sale is held on the client’s premises, up to 7.5% of the proceeds of sale, plus reasonable costs
Where sale does not take place
£22.50 or the actual costs up to 5% of the amount of the liability order (whichever is the larger sum)
The above fees and charges were last uprated in 2003. The Department for Communities and Local Government has recently published a consultation paper in which it is proposed to increase these fees in line with inflation (8.4% between April 203 and April 2006), rounded to the nearest 50 pence.
Vulnerable situations – extract from National Standards for Enforcement Agents
·Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with. The appropriate use of discretion is essential in every case and no amount of guidance could cover every situation, therefore the agent has a duty to contact the creditor and report the circumstances in situations where there is potential cause for concern. If necessary, the enforcement agent will advise the creditor if further action is appropriate. The exercise of appropriate discretion is needed, not only to protect the debtor, but also the enforcement agent who should avoid taking action which could lead to accusations of inappropriate behaviour.
·Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 18; they can ask when the debtor will be home – if appropriate.
·Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12.
·Wherever possible, enforcement agents should have arrangements in place for rapidly accessing translation services when these are needed, and provide on request information in large print or Braille for debtors with impaired sight.
·Those who might be potentially vulnerable include:
·the elderly
·people with a disability
·the seriously ill
·the recently bereaved
·single parent families
·pregnant women
·unemployed people
·those who have obvious difficulty in understanding, speaking or reading English
Glossary of terms
Bailiff
A person who is employed to obtain payment of a debt through removal or threatened removal of goods.
Certification
Private bailiffs who enforce distress for council tax (and rent, road traffic penalties, etc.) must be in receipt of a certificate. This is granted by a county court judge, who must be satisfied that the bailiff is a ‘fit and proper person’ to hold such a certificate.
Distress & distraint
These terms mean the same, and refer to the process of removing or threatening to remove goods in order to enforce a debt.
Enforcement
This is used to refer to any process of seeking to compel payment of a debt by the use of a legal remedy.
Impounding
This is the process by which bailiffs obtain legal control over the goods they have seized. In other words, the process of impounding gives the bailiff the power to return to the premises, remove and sell the goods. Goods could be impounded by immediate removal, or by leaving a bailiff in ‘close possession’ of the goods, i.e. on the premises. However, the most common method of impounding is ‘walking possession’.
Levy
The process whereby a debtor’s goods are seized and impounded. See Advisernet 13.15.16.14 Bailiffs: a glossary paragraphs 12 - 29 for a detailed description of the process.
Private bailiff
All bailiffs other than county court bailiffs are private, i.e. they work on a commercial basis and obtain their income from the fees they charge for the work.
Replevin
Where goods have been subject to distress illegally, replevin is a court remedy which can be used to recover those goods.
Seizure
This refers to the process of identifying goods which can be taken to redeem the debt.
Walking possession
This is the form of impounding which is most commonly used for the enforcement of domestic debt. Once goods have been seized, they remain on the debtor’s premises, and therefore available for his or her use, on the understanding that they will not be removed. Once a bailiff has obtained walking possession, usually via a signed written agreement, he has the right to return to the premises, forcing entry if necessary, and to remove and sell the goods. There is a charge for walking possession, which for council tax is a flat fee of £11.
Warrant
As in ‘warrant of distress’ - the authorisation which allows bailiffs to carry out the process of distress.
[1] Bureaux report that council tax is the priority debt which is most frequently enforced by bailiffs. In 2005/6, for example, 63% of enquiries to bureaux in England and Wales concerning harassment and enforcement by bailiffs were about council tax and community charge arrears. Parking penalties, by contrast, only account for 9% of enquiries concerning harassment and enforcement by bailiffs.
I recall the CAB starting a campaign asking for greater Government action and tighter regulation of Bailiffs and DCA's back in 2006. But have heard nothing of what happened with this campaign since. Does anyone have an update on this campaign and it's progress ?
If it stalled, then maybe it is time that the campaign was revived somehow, especially in light of so many people now falling foul of these 'leeches' with their lies, threats and intimidation since the financial crisis took a grip on this and other countries throughout the world. It seems to me that these 'people' are the only ones who are making money in the current climate (a lot of money at that), and in many cases money they are NOT entitled to (am thinking of the exhorbitant 'Admin Fees' and 'Visitation Fees' for example that they often try to levy).
A lot of excellent advice is dispensed from this site (and others) on what your rights are when dealing with Bailiffs/DCA's, but I am sure that many members of the public (who do not know of sites such as this) are completely unaware of what their rights are and cave in to the threats they receive from such people.
I was reading the papers today about Loan Sharks and their behaviour, and it strikes me that, from personal experience and reading the many horror stories on here, Bailiffs and DCA's often use very similar tactics (short of using violence). The only difference being that Loan Sharks are illegal whereas Bailiffs & DCA's are not.
For those who don't know what I am talking about, the following is the text that the CAB published at the time (2006).
A CAB campaign on bailiff regulation
September 2006
Background briefing
Introduction
Citizens Advice Bureaux have been reporting the problems experienced by clients as a result of bailiff action for many years. The widespread use of bailiffs by local authorities since the introduction of the community charge and its successor the council tax has added to a weight of evidence pointing to the need for a complete reform of bailiff law. The government has now published a Draft Tribunals, Courts and Enforcement Bill, which aims to introduce a single procedure for taking control of goods. Unfortunately, the government has dropped from the draft Bill any plans to regulate the activities of bailiffs even though the legislation, if enacted, will give them added powers. We think this is unacceptable, given the outrageous practices by some bailiff firms reported in the evidence sent in by bureaux.
This campaign seeks to raise awareness of the problems experienced by CAB clients when bailiffs are used to collect unpaid council tax, improve local authority practice in this area, and lobby MPs on the need for a regulatory framework to be included in the Draft Tribunals, Courts and Enforcement Bill.
Campaign aims
·To work with local authorities to improve the practices of bailiffs collecting council tax.
·To lobby MPs on the need for bailiffs to be regulated.
Timescale
The campaign will be launched at the Citizens Advice Conference and AGM in York in September 2006. Campaign activities will be carried out between October and December 2006 but local bureaux may continue working with their local authority to improve bailiff practices after this date.
Briefing
Why is this an important issue?
The use of bailiffs to enforce debts by seizing goods has long been the most effective and controversial method of debt collection available in English law. The law as it stands today - a mixture of common law, statute and case law, some of which dates back to medieval times - is archaic, complex and confusing, and in urgent need of reform, a need that the passing of the Human Rights Act has only served to emphasise.
For many years, Citizens Advice Bureaux have reported a wide range of problems experienced by clients as a result of bailiff action. Since the introduction of the community charge in England and Wales in 1990, and its successor the council tax in 1993, this volume of evidence has grown[1]. Citizens Advice has published a series of evidence reports, culminating in Undue Distress in 2000, highlighting the distress and misery experienced by CAB clients as a result of bailiffs using distress to enforce debts, including council tax arrears. These problems have been compounded by the absence of effective independent monitoring, complaints monitoring and mechanisms for redress.
In 1998, the government announced an Enforcement Review. Three years later, it published a Green Paper, Towards Effective Enforcement, which took forward most of the recommendations contained in Professor Jack Beatson’s Independent Review of Bailiff Law. The Green Paper proposed that there should be a single piece of legislation governing the seizure of goods, a new fee structure, and a commission to regulate all bailiffs. In 2002, the National Standards for Enforcement Agents, a set of minimum standards with which all bailiffs are expected to comply, were introduced as a stopgap measure in the absence of any new legislation. However, compliance with the standards is not monitored and they do not include any complaints or appeals procedures or provide any accessible means of redress. The following year, the government published a White Paper, Effective Enforcement, which followed the Green Paper in proposing a complete reform of bailiff law and a new, unitary system of regulation, powers and fees.
Finally, on 25th July 2006, the government published a Draft Tribunals, Courts and Enforcement Bill, which includes a single procedure for taking control of goods. However, proposals to regulate the activities of bailiffs were shelved for the time being. The notes to the Bill state:
Effective Enforcement … identified that persons who currently take control of goods are not subject to any uniform regulatory system and highlighted anecdotal evidence of some enforcement agents threatening and intimidating vulnerable debtors. Effective Enforcement therefore proposed a system to guard against malpractice and to protect debtors. It was initially intended that a licensing regime should be put in place, implemented by a regulatory body. While this remains the Government’s long-term aim, as an interim measure the Bill replaces (and extends and modifies) the certification process that currently exists for bailiffs under the Distress for Rent Rules 1998.
This retreat from giving protection to vulnerable debtors occurs at the same time that the Bill gives bailiffs the right to apply to the court for the power to use reasonable force to enter premises. This discretionary power, if exercised, will mean that debtors will no longer be able to refuse bailiffs entry. It will inevitably mean that even more CAB clients will be reporting problems about bailiffs to bureaux.
What problems are bureaux reporting?
Bureaux have been reporting a wide range of problems experienced by clients because of bailiff action to collect unpaid council tax. The most common kinds of problems are:
Misrepresenting powers of entry
Bailiffs collecting council tax have no power to force initial entry or break open an outer door if it is either locked or bolted. They must enter a property peacefully through an unlocked door or through an open window. They may not enter through a closed window, even if it is not locked. They cannot obtain a court order to gain entry and the police have no power to force entry on their behalf. Bailiffs can only force entry if they have previously gained peaceful entry.
However, bureaux have continued to report problems with bailiffs misrepresenting their powers of entry, falsely claiming that they can force entry or have a warrant that allows them to force entry or that they will return with the police who will force entry on their behalf.
This problem has been further complicated by the implementation of Section 27 and Schedule 4A of the Domestic Violence, Crime and Victims Act 2004, which, since 18 July 2005, have allowed bailiffs to force entry in connection with unpaid magistrates’ courts fines. Bureaux have reported that some bailiffs’ firms have claimed that this power extends to other debts, including council tax arrears. This is not the case.
Threats of imprisonment
Bureaux have reported that bailiffs have threatened clients with imprisonment if, for example, they do not allow the bailiffs entry to the debtor’s home.
A debtor cannot be sent to prison for refusing to allow the bailiffs entry. In fact, the debtor is entitled to refuse the bailiffs entry and is allowed to use reasonable force in resisting bailiffs who have unlawfully tried to push their way in.
A debtor can only be sent to prison for council tax arrears if (i) the local authority decides to apply to the magistrates’ court for a means enquiry hearing, (ii) a means enquiry hearing is then held at the magistrates’ court, (iii) the magistrates decide that the debtor has either wilfully refused or culpably neglected to pay, and (iv) the magistrates have examined all the other payment methods available but found that none will be effective.
Unlawful fees
The fees that bailiffs are allowed to charge are set by statute and are included at the end of this briefing.
However, bureaux have reported a variety of problems about the fees charged by bailiffs. These include fees being charged when they:
·Are not permitted, e.g. when no levy has been made (see the glossary in the resource materials section of this campaign pack for definitions of some of the terms used)
·Are spurious, e.g. ‘administration’ and ‘clamping’ fees
·Have not been “actually and necessarily” incurred, and
·Are unreasonable and disproportionate to the amount of the debt being collected
Under the National Standards for Enforcement Agents, bailiffs must provide a breakdown of the fees charged if this has been requested. Advisers can use this breakdown to challenge any unlawful fees.
Harassment and intimidation
The National Standards for Enforcement Agents states that “Enforcement agents must carry out their duties in a professional, calm and dignified manner. They must dress appropriately and act with discretion and fairness.”
Many bureaux, though, have reported alarming instances of bailiffs harassing and intimidating clients, a problem exacerbated by the lack of effective independent monitoring, complaints monitoring, and clear and accessible mechanisms for redress.
Problems negotiating repayment
Private bailiffs collecting council tax need to have a reputation for effective enforcement in order to continue to receive business. They also want prompt payment of their fees. For these reasons, it is in their interests to get the debtor to pay as near the full amount due as possible, as quickly as possible. This situation is further complicated by the way in which the contracts between local authorities and bailiff firms seem to vary from district to district. Many bureaux have reported problems when trying to negotiate realistic, affordable repayment plans with bailiffs. Local authority contracts very often tie bailiffs in to a short collection period. However, local authorities will very often permit bailiffs to vary this if, e.g. the debtor is in receipt of Income Support or Income-based JSA. Despite this, bailiff firms frequently demand payments of £50 per week even when authorised to accept less. These problems are likely to increase if bailiffs are to be allowed to force entry to take control of goods.
Protected goods
Certain goods are protected and cannot be seized by the bailiffs. The statutory definition of protected goods is included in the resource materials section of this campaign pack. However, many bureaux have reported problems with bailiffs either threatening to remove or actually removing protected goods.
Third party goods
The council tax regulations make it clear that bailiffs can only seize and remove goods belonging to the debtor. However, many bureaux have reported problems with bailiffs removing the goods of third parties, including those belonging to family members, flatmates, and landlords, as well as those subject to hire purchase and hire agreements.
Vulnerable situations
The National Standards for Enforcement Agents, published in 2002, contains guidance on how bailiffs should deal with vulnerable and socially excluded people. The guidance is included in this campaign pack. However, bureaux routinely report cases in which bailiff firms have failed to adhere to the guidance.
What would Citizens Advice like to happen?
·We believe that the regulation of bailiffs is essential to protect the interests of vulnerable debtors and to ensure that all bailiffs are properly controlled and accountable.
·We also consider that the passing of the Human Rights Act has made the need for bailiff regulation even more important, given the way in which harassment, intimidation and unlawful entry can all be serious breaches of the Act. We would therefore like to see a regulatory framework included in the Draft Tribunals, Courts and Enforcement Bill.
·We are also concerned that at present it is very difficult for debtors to complain or appeal against the activities of bailiffs, e.g. the National Standards for Enforcement Agents do not include complaints or appeals procedures and compliance against the standards is not monitored.
·We believe that there should be clear, transparent and accessible mechanisms available to debtors for making complaints against bailiffs, with effective remedies against bad practice including harassment and intimidation.
·We believe that these complaints and redress mechanisms should form part of this regulatory framework.
·We believe that regulation should be independent and impartial and would therefore like to see a statutory body such as the Office of Fair Trading responsible for regulating the activities of all bailiffs.
What is Citizens Advice doing about this on a national level?
·We will be lobbying MPs on the need for bailiffs to be regulated and for a regulatory framework to be included in the Draft Tribunals, Courts and Enforcement Bill.
·We will be using the evidence gathered by bureaux to formally respond to the consultation on the Bill
The Draft Tribunals, Courts and Enforcement Bill can be viewed and downloaded from the Department for Constitutional Affairs website: www.dca.gov.uk.
Useful terms
Protected goods
The definition of protected goods (i.e. goods which cannot be seized by the bailiffs) for unpaid council tax is: -
‘such tools, books, vehicles and other items of equipment as are necessary to the debtor for use personally in his employment, business or vocation’ and ‘such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the debtor and his family’
Council Tax (Administration and Enforcement) Regulations 1992, Reg 45(1A)
Scale of fees and charges
In council tax arrears cases, for each liability order where no levy is made, £22.50 for the first or only visit, and £16.50 for a second visit. No charge can be made for subsequent visits.
For levying distress, the following fees may be charged (or a lesser amount if that would be reasonable): -
[Table]
Where the sum due is £100 or less
22.5%(£22.50)
For the next £400
4%
For the next £1,500
2.5%
For the next £8,000
1%
For any additional sum
0.25%
The charges in council tax arrears cases are as follows:
[Table]
Walking possession
£11
One attendance with a vehicle with a view to removal of goods where, following the levy, goods are not removed
Reasonable costs
Removal and storage of goods
Reasonable costs
Valuation
Reasonable costs, but no charge can be made unless the client has been advised beforehand of the charge and how it is calculated
Sale
Up to 15% of the proceeds of sale if the sale is held on auctioneer’s premises, plus reasonable out-of-pocket expenses and reasonable advertising costs. Where the sale is held on the client’s premises, up to 7.5% of the proceeds of sale, plus reasonable costs
Where sale does not take place
£22.50 or the actual costs up to 5% of the amount of the liability order (whichever is the larger sum)
Council Tax (Administration and Enforcement) Regulations 1992, Schedule 5 Reg 45(2)(b)
The above fees and charges were last uprated in 2003. The Department for Communities and Local Government has recently published a consultation paper in which it is proposed to increase these fees in line with inflation (8.4% between April 203 and April 2006), rounded to the nearest 50 pence.
Vulnerable situations – extract from National Standards for Enforcement Agents
·Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with. The appropriate use of discretion is essential in every case and no amount of guidance could cover every situation, therefore the agent has a duty to contact the creditor and report the circumstances in situations where there is potential cause for concern. If necessary, the enforcement agent will advise the creditor if further action is appropriate. The exercise of appropriate discretion is needed, not only to protect the debtor, but also the enforcement agent who should avoid taking action which could lead to accusations of inappropriate behaviour.
·Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 18; they can ask when the debtor will be home – if appropriate.
·Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12.
·Wherever possible, enforcement agents should have arrangements in place for rapidly accessing translation services when these are needed, and provide on request information in large print or Braille for debtors with impaired sight.
·Those who might be potentially vulnerable include:
·the elderly
·people with a disability
·the seriously ill
·the recently bereaved
·single parent families
·pregnant women
·unemployed people
·those who have obvious difficulty in understanding, speaking or reading English
Department for Constitutional Affairs, May 2002
Glossary of terms
Bailiff
A person who is employed to obtain payment of a debt through removal or threatened removal of goods.
Certification
Private bailiffs who enforce distress for council tax (and rent, road traffic penalties, etc.) must be in receipt of a certificate. This is granted by a county court judge, who must be satisfied that the bailiff is a ‘fit and proper person’ to hold such a certificate.
Distress & distraint
These terms mean the same, and refer to the process of removing or threatening to remove goods in order to enforce a debt.
Enforcement
This is used to refer to any process of seeking to compel payment of a debt by the use of a legal remedy.
Impounding
This is the process by which bailiffs obtain legal control over the goods they have seized. In other words, the process of impounding gives the bailiff the power to return to the premises, remove and sell the goods. Goods could be impounded by immediate removal, or by leaving a bailiff in ‘close possession’ of the goods, i.e. on the premises. However, the most common method of impounding is ‘walking possession’.
Levy
The process whereby a debtor’s goods are seized and impounded. See Advisernet 13.15.16.14 Bailiffs: a glossary paragraphs 12 - 29 for a detailed description of the process.
Private bailiff
All bailiffs other than county court bailiffs are private, i.e. they work on a commercial basis and obtain their income from the fees they charge for the work.
Replevin
Where goods have been subject to distress illegally, replevin is a court remedy which can be used to recover those goods.
Seizure
This refers to the process of identifying goods which can be taken to redeem the debt.
Walking possession
This is the form of impounding which is most commonly used for the enforcement of domestic debt. Once goods have been seized, they remain on the debtor’s premises, and therefore available for his or her use, on the understanding that they will not be removed. Once a bailiff has obtained walking possession, usually via a signed written agreement, he has the right to return to the premises, forcing entry if necessary, and to remove and sell the goods. There is a charge for walking possession, which for council tax is a flat fee of £11.
Warrant
As in ‘warrant of distress’ - the authorisation which allows bailiffs to carry out the process of distress.
[1] Bureaux report that council tax is the priority debt which is most frequently enforced by bailiffs. In 2005/6, for example, 63% of enquiries to bureaux in England and Wales concerning harassment and enforcement by bailiffs were about council tax and community charge arrears. Parking penalties, by contrast, only account for 9% of enquiries concerning harassment and enforcement by bailiffs.
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