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National Standards for Enforcement Agents
Only two days ago, and still unpublished anywhere else as far as I know, is the fact the MOJ have announced their intention totally to rewrite the National Standards for Enforcement Agents. To some extent this makes sense as certain elements will no longer be relevant. However, there are also some major implications, such as those counting as ‘Vulnerable’ (see separate section below). Until such time as new standards are released, we are left using the existing ones.
What is vulnerable?
This is now determined entirely by the EA. There is nothing in writing yet which determines this category of debtor. We have been promised new National Standards for Enforcement Agents, and as mentioned above, these are to be totally rewritten. They are not there (even in a draft form) yet. We must assume the EA’s will apply the criteria for vulnerability as currently exists.
Complaints
There is nothing laid down about how to make a formal complaint through the courts. This is madness.
Methods of Entry (including forced entry)
These are covered in the TCE Act Schedule 12, (14 – 22) and (23 – 33)
This is really split into three sections now, initial entry, re-entry(entries) and forced entry.
Initial Entry
As the regulations read, initial entry must be peaceful and only through an open door (unlocked OR ajar). The key difference here is EO's may no longer gain peaceful entry through an open window.
Re-entry
Where goods have been taken control of, but have not yet been removed, the EA is permitted to re-enter in order to inspect the goods or remove them for sale (effectively when they want to). This can be done with or without a warrant from the court. Although peaceful entry is not specified, it is fair to assume it means peaceful entry as there is a separate section of the Act for forced entry.
Forced Entry
This is what the Act says.
Application for power to use reasonable force ( LINK )
20(1)This paragraph applies if an enforcement agent has power to enter premises under paragraph 14 or 16 or under a warrant under paragraph 15.
(2)If the enforcement agent applies to the court it may issue a warrant which authorises him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised. (Comment – what a shame to see the word reasonable used. What is reasonable?)
21(1) This paragraph applies if an enforcement agent is applying for power to enter premises under a warrant under paragraph 15.
(2)If the enforcement agent applies to the court it may include in the warrant provision authorising him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised. (Comment – this is the part where locksmiths etc… may be authorised. As it reads here, the provision must be included separately on the warrant granting forced entry).
22(1) The court may not issue a warrant under paragraph 20 or include provision under paragraph 21 unless it is satisfied that prescribed conditions are met.
(2) A warrant under paragraph 20 or provision included under paragraph 21 may require any constable to assist the enforcement agent to execute the warrant. (A clear, and very significant change from the police attending only in order to prevent a breach of the peace).
Exempt Goods
There are many items belonging to the debtor that may be taken into control. However there are some that are exempt, principally:
With regards to tools of the trade, they may only be claimed as exempt by a sole trader who is the only person to use them for his work. It cannot be claimed where another person uses them or by a partnership or limited company.
Fee Recovery
The Taking Control of Goods Regulations state that, “fees referred to ……… may be recovered out of proceeds.” I assume this means that EA’s will be able to take their fees first before passing on the remainder to the creditor.
What about HCEO’s?
Again they are now called EA’s. The most common reason we see for something ending up under a High Court Writ is where a County Court Debt of £600 or over has been escalated to what was formerly an HCEO for collection.
With HCEO’s collection of fees changes, as when the EA is acting under a High Court writ, they may recover all fees for that stage if the FULL DEBT is repaid after the start of the stage, but BEFORE its completion AND the controlled goods agreement is not breached.
NOTE:for HCEO’s (EA’s) there are two enforcement stages in addition to the compliance stage, not just one prior to sale of goods. Fees are set out in the Schedule linked HERE.
If no CGA is agreed, or the debtor breaches it, the EA may recover BOTH the first and second enforcement stage fees in all circumstances. This amounts to £760.00 of fees in addition to any debt owed!
On the positive side, there is less incentive for the EA to force sale of goods for the extra £525.00 (+ %age), though common sense will prevail. If there is a Porsche parked in the driveway, the EA is likely to go for sale. If it is clear the goods are not there and the debtor is genuinely struggling, they are far less likely to go for the sale. We hope this will not be abused, though is something we will need to be alert for.
Vulnerable debtors will be afforded some protection in that they must be given time to seek help. However, the definition of vulnerability lies with the EA!
The role of the police under the new regulations
This is a change of some concern.Currently police attend to stop a breach of the peace. The regulations now state clearly that for forced entry, (-ie- with a Court Warrant), the EA, “may require any constable to assist.”
Police attendance must therefore be seen as them being there to help the EA.
Giving help to posters – what should I say?
If members are covered under the transitional regulations, keep paying religiously and do not miss any payments, even by one day. If they do they will fall under the new regulations.
For new accounts post April 6th, to a large extent the approach is self evident from the regulations. Unless there are significant issues over procedures not being correctly followed, the best suggestion for any debtor is to engage with the bailiffs as soon as possible.
As said in the last ‘Sticky’ in a quotation from a highly respected bailiff specialist, “The days when a debtor can ignore bailiff correspondence are finished.”
If debtors are beyond the Compliance Stage and into Enforcement, it is still very much in their interests to engage with the bailiffs to try to arrange something.
Quite a lot of councils will now be using their own EA’s, so it is very much a case of damage limitation to the debtor’s wallet.
How flexible repayment plans will be remains an unknown quantity, though there is guidance in the TCE Act Regs 111, 113 and Section 21 Linked HERE which allows for the provision of application for approval to include a debt in a Debt Management Scheme by the debtor applying through the County Court (TCE Act Part 5), though self-managed DMP’s seem not to be approved of (though are not entirely ruled out). It remains unclear just how much this provision will be able to be used by debtors, and sadly the poorest ones who cannot afford this application are likely to be the ones who need it most.
GENERAL COMMENT
As we hope you can see, while elements of the new regulations are welcomed, there is still plenty of scope for rogue Enforcement Agents to abuse them. Many of these have been pointed out, though massive chunks remain untouched currently. The content posted here may well be added to before (and after) Monday as more issues come to light. Only today, The Sun newspaper carried a large headline about the new regulations and how they are going to cost us, the public, a lot more money. Papers like this can massively affect the opinion of the public, so we should expect a period of fairly rapid change. Many councils are only now producing their own guidance, so this may enable us to add to what is already here. Hopefully we have covered enough to give a decent insight. We know much remains almost untouched (seizing goods on the highway etc..., Non-Domestic rates, etc...., etc.... )
The MOJ has left things far too open, and not covered insufficient detail things consumer groups and bailiff companies alike had wanted clarified. Both remain very conerned.
Finally, for anyone with problems, just post on the forum as usual - help will be at hand.
Only two days ago, and still unpublished anywhere else as far as I know, is the fact the MOJ have announced their intention totally to rewrite the National Standards for Enforcement Agents. To some extent this makes sense as certain elements will no longer be relevant. However, there are also some major implications, such as those counting as ‘Vulnerable’ (see separate section below). Until such time as new standards are released, we are left using the existing ones.
What is vulnerable?
This is now determined entirely by the EA. There is nothing in writing yet which determines this category of debtor. We have been promised new National Standards for Enforcement Agents, and as mentioned above, these are to be totally rewritten. They are not there (even in a draft form) yet. We must assume the EA’s will apply the criteria for vulnerability as currently exists.
Complaints
There is nothing laid down about how to make a formal complaint through the courts. This is madness.
Methods of Entry (including forced entry)
These are covered in the TCE Act Schedule 12, (14 – 22) and (23 – 33)
This is really split into three sections now, initial entry, re-entry(entries) and forced entry.
Initial Entry
As the regulations read, initial entry must be peaceful and only through an open door (unlocked OR ajar). The key difference here is EO's may no longer gain peaceful entry through an open window.
Re-entry
Where goods have been taken control of, but have not yet been removed, the EA is permitted to re-enter in order to inspect the goods or remove them for sale (effectively when they want to). This can be done with or without a warrant from the court. Although peaceful entry is not specified, it is fair to assume it means peaceful entry as there is a separate section of the Act for forced entry.
Forced Entry
This is what the Act says.
Application for power to use reasonable force ( LINK )
20(1)This paragraph applies if an enforcement agent has power to enter premises under paragraph 14 or 16 or under a warrant under paragraph 15.
(2)If the enforcement agent applies to the court it may issue a warrant which authorises him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised. (Comment – what a shame to see the word reasonable used. What is reasonable?)
21(1) This paragraph applies if an enforcement agent is applying for power to enter premises under a warrant under paragraph 15.
(2)If the enforcement agent applies to the court it may include in the warrant provision authorising him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised. (Comment – this is the part where locksmiths etc… may be authorised. As it reads here, the provision must be included separately on the warrant granting forced entry).
22(1) The court may not issue a warrant under paragraph 20 or include provision under paragraph 21 unless it is satisfied that prescribed conditions are met.
(2) A warrant under paragraph 20 or provision included under paragraph 21 may require any constable to assist the enforcement agent to execute the warrant. (A clear, and very significant change from the police attending only in order to prevent a breach of the peace).
Exempt Goods
There are many items belonging to the debtor that may be taken into control. However there are some that are exempt, principally:
- Bedding, clothing, furniture and provisions that the debtor and their family need for a basic level of domestic life
- Items reasonably required for the care of a person under 18, a disabled person or an older person (over 65)
- Perishable goods: refrigerated foodstuffs, fresh flowers etc.
- Vehicles with a valid disabled person’s badge, vehicles used for police, fire or ambulance purposes or a vehicle with a valid British Medical Association badge or other health emergency badge because it is being used for health emergency purposes
- Assistance dogs, sheep dogs, guard dogs and domestic pets
- Tools of the trade: those needed by the debtor to do their job or run their business, for example tools, books, vehicles etc., but only to a value of £1,350
With regards to tools of the trade, they may only be claimed as exempt by a sole trader who is the only person to use them for his work. It cannot be claimed where another person uses them or by a partnership or limited company.
Fee Recovery
The Taking Control of Goods Regulations state that, “fees referred to ……… may be recovered out of proceeds.” I assume this means that EA’s will be able to take their fees first before passing on the remainder to the creditor.
What about HCEO’s?
Again they are now called EA’s. The most common reason we see for something ending up under a High Court Writ is where a County Court Debt of £600 or over has been escalated to what was formerly an HCEO for collection.
With HCEO’s collection of fees changes, as when the EA is acting under a High Court writ, they may recover all fees for that stage if the FULL DEBT is repaid after the start of the stage, but BEFORE its completion AND the controlled goods agreement is not breached.
NOTE:for HCEO’s (EA’s) there are two enforcement stages in addition to the compliance stage, not just one prior to sale of goods. Fees are set out in the Schedule linked HERE.
If no CGA is agreed, or the debtor breaches it, the EA may recover BOTH the first and second enforcement stage fees in all circumstances. This amounts to £760.00 of fees in addition to any debt owed!
On the positive side, there is less incentive for the EA to force sale of goods for the extra £525.00 (+ %age), though common sense will prevail. If there is a Porsche parked in the driveway, the EA is likely to go for sale. If it is clear the goods are not there and the debtor is genuinely struggling, they are far less likely to go for the sale. We hope this will not be abused, though is something we will need to be alert for.
Vulnerable debtors will be afforded some protection in that they must be given time to seek help. However, the definition of vulnerability lies with the EA!
The role of the police under the new regulations
This is a change of some concern.Currently police attend to stop a breach of the peace. The regulations now state clearly that for forced entry, (-ie- with a Court Warrant), the EA, “may require any constable to assist.”
Police attendance must therefore be seen as them being there to help the EA.
Giving help to posters – what should I say?
If members are covered under the transitional regulations, keep paying religiously and do not miss any payments, even by one day. If they do they will fall under the new regulations.
For new accounts post April 6th, to a large extent the approach is self evident from the regulations. Unless there are significant issues over procedures not being correctly followed, the best suggestion for any debtor is to engage with the bailiffs as soon as possible.
As said in the last ‘Sticky’ in a quotation from a highly respected bailiff specialist, “The days when a debtor can ignore bailiff correspondence are finished.”
If debtors are beyond the Compliance Stage and into Enforcement, it is still very much in their interests to engage with the bailiffs to try to arrange something.
Quite a lot of councils will now be using their own EA’s, so it is very much a case of damage limitation to the debtor’s wallet.
How flexible repayment plans will be remains an unknown quantity, though there is guidance in the TCE Act Regs 111, 113 and Section 21 Linked HERE which allows for the provision of application for approval to include a debt in a Debt Management Scheme by the debtor applying through the County Court (TCE Act Part 5), though self-managed DMP’s seem not to be approved of (though are not entirely ruled out). It remains unclear just how much this provision will be able to be used by debtors, and sadly the poorest ones who cannot afford this application are likely to be the ones who need it most.
GENERAL COMMENT
As we hope you can see, while elements of the new regulations are welcomed, there is still plenty of scope for rogue Enforcement Agents to abuse them. Many of these have been pointed out, though massive chunks remain untouched currently. The content posted here may well be added to before (and after) Monday as more issues come to light. Only today, The Sun newspaper carried a large headline about the new regulations and how they are going to cost us, the public, a lot more money. Papers like this can massively affect the opinion of the public, so we should expect a period of fairly rapid change. Many councils are only now producing their own guidance, so this may enable us to add to what is already here. Hopefully we have covered enough to give a decent insight. We know much remains almost untouched (seizing goods on the highway etc..., Non-Domestic rates, etc...., etc.... )
The MOJ has left things far too open, and not covered insufficient detail things consumer groups and bailiff companies alike had wanted clarified. Both remain very conerned.
Finally, for anyone with problems, just post on the forum as usual - help will be at hand.
The Black rat (Rattus rattus) is a common (hence the accusation of being Pleb) long-tailed rodent of the genus Rattus (rats) in the subfamily Murinae (murine rodents). The species originated in tropical Asia and spread through the Near East in Roman times (another thing that we ought to thanks the Romans for, besides roads, aqueducts and public toilets) before reaching Europe by the 1st century and spreading with Europeans across the world.
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