Right of access

Re: Right of access

seem to remember reading that CIVEA issued a memo instructing bailiff companies to routinely ignore these notices.

Seem to remember CIVEA stating bailiffs should charge Head H for council tax whenever a levy was made as well. Doesn't mean they were correct.

Re: Right of access

There is a real bailiff on here & would no doubt tell you that he would ignore the notice. He'd probably jam his foot in a door if it wasn't on camera as well. That doesn't make it legal. This is why (as I explained before), I used to send notice to head office as well as to the council rather than rely on an individual bailiffs honesty & integrity.

Once a liability order is obtained, the authority then has power to do other things. One of them was to use bailiffs. Just as a householder can stop a policeman entering the boundaries of his property without a warrant, so can he stop a private bailiff entering the boundaries of his property without a warrant.

There is nothing anywhere in legislation that states a bailiff had any power to visit once his right of access had been removed. This probably explains why I was able to use the notice successfully several times last year.

Re: Right of access

By the same token they May or May not take notice of the piece of paper denying them right of access,
If we had a real life Bailiff on here we could ask them ?

seem to remember reading that CIVEA issued a memo advising bailiff companies to routinely ignore these notices.

[UnitedFront]

Re: Right of access

Doesn't the phrase "authority may", indicate that the decision to levy rests with the authority rather than the debtor ?

You could ask with or without a "notice" I suppose but I do not think it would have any effect.

That's exactly what it meant. As per my previous post, to say that one can exercise a Common Law right in order to defeat a Statutory Provision (which in effect was specifically aimed at limiting that right) is nothing short of madness. Such a viewpoint really is (at very best) skirting right on the very edge of the FMOL nonsense.

It does strike me that this debate is all rather academic, since the law has changed.

My point remains the same, nonetheless, in that the new law really doesn't change much.

[UnitedFront]

Re: Right of access

The Starving Taxpayer:

That interpretation of the law old law is/was no more than wishful thinking. The term may has no real significance, other than showing that a Local Authority is not under an obligation to levy distress.

Statute Law is supreme when at odds with Common Law. Statute Law said that Local Authorities could (via their Bailiffs) levy distress anywhere in England or Wales.

The Common Law right to refuse permission for that Bailiff to enter land cannot and never did (in law, although I concede it may occasionally have worked in reality) over-ride or undo the effects of the Statutory provisions. To make such a claim really is skirting perilously close to FMOL theories of Common Law being all-powerful.

As I previously said, the word may merely meant that the Local Authority was not under an obligation to levy distress. The use of that word in no way afforded anyone the right to refuse Bailiffs peaceful access to land. It is a gargantuan leap to go from "no obliged to levy distress" to "can be prevented from making peaceful entry".

I must emphasis, however, that

[wales01man]

Re: Right of access

By the same token they May or May not take notice of the piece of paper denying them right of access,
If we had a real life Bailiff on here we could ask them ?

Re: Right of access

But you've missed out that magic word haven't you?

An authority MAY levy the appropriate amount of distress.

This effectively gave the authority the OPTION of using distress, as I stated previously. Another option was that an authority MAY apply for an AOE.

Whether the new laws have changed anything remains to be seen. I suspect they will have and I've heard arguments for this whilst quoting from the new regs.

Legislation does not state that the authority SHALL, only that it MAY-It gives permission to do so, it doesn't order the authority to do so.

Revoking right of access means an authority MAY NOT levy the appropriate amount of distress. This often meant they would then go for an AOE instead.

Doesn't the phrase "authority may", indicate that the decision to levy rests with the authority rather than the debtor ?

You could ask with or without a "notice" I suppose but I do not think it would have any effect.

Re: Right of access

But you've missed out that magic word haven't you?

An authority MAY levy the appropriate amount of distress.

This effectively gave the authority the OPTION of using distress, as I stated previously. Another option was that an authority MAY apply for an AOE.

Whether the new laws have changed anything remains to be seen. I suspect they will have and I've heard arguments for this whilst quoting from the new regs.

Legislation does not state that the authority SHALL, only that it MAY-It gives permission to do so, it doesn't order the authority to do so.

Revoking right of access means an authority MAY NOT levy the appropriate amount of distress. This often meant they would then go for an AOE instead.

Re: Right of access

I am 100% for consumer rights and, as anyone who knows me would testify, I despise Bailiffs/EAs. But I'm sorry to say that I have to disagree with you on the point in bold, above.

Sch.4 Para.7 of the Local Government Finance Act 1992 provided that Regulations could be implemented giving Local Authorities, who had obtained a Liability Order, to "levy the appropriate amount by distress and sale of the debtor's goods".

The Council Tax (Administration and Enforcement) Regulations 1992/613 were implemented. This allowed the local authority to "levy the appropriate amount by distress and sale of the goods of the debtor..." (Reg.45 Para.1) anywhere in England and Wales (Reg.45 Para.6) so long as it was carried out by a person authorised to act as a Bailiff (Reg.45 Para.6A). [emphasis added]

So in effect, a person's right to withdraw consent for a Bailiff to enter upon land was curtailed by law implemented by, or with the authorisation of, Parliament. This is another example of Statute Law limiting the effect of Common Law.

Insomuch as the previous regime only allowed such Bailiffs to make peaceful entry, the new law hasn't changed anything. An EA recovering Council Tax will still not be able to make forceful entry (without the express permission of the court).

Furthermore, given the above conclusion that peaceful entry by Bailiffs could not be prevented by "withdrawing permission" for them to enter land, Sch.12 Para.14 of the new law is merely a re-statement of the old position.

Yes all unfortunately true.

[UnitedFront]

Re: Right of access

I would repeat that a private bailiff collecting council tax was not acting under any warrant or writ. A liability order simply determined a debtors liability and gave the private bailiff no powers that were greater than any other member of the general public.

A liability order simply afforded the authority in question further options in which to recover the debt. There is nothing within a liability order that gives a bailiff (EA) any power.

I am 100% for consumer rights and, as anyone who knows me would testify, I despise Bailiffs/EAs. But I'm sorry to say that I have to disagree with you on the point in bold, above.

Sch.4 Para.7 of the Local Government Finance Act 1992 provided that Regulations could be implemented giving Local Authorities, who had obtained a Liability Order, to "levy the appropriate amount by distress and sale of the debtor's goods".

The Council Tax (Administration and Enforcement) Regulations 1992/613 were implemented. This allowed the local authority to "levy the appropriate amount by distress and sale of the goods of the debtor..." (Reg.45 Para.1) anywhere in England and Wales (Reg.45 Para.6) so long as it was carried out by a person authorised to act as a Bailiff (Reg.45 Para.6A). [emphasis added]

So in effect, a person's right to withdraw consent for a Bailiff to enter upon land was curtailed by law implemented by, or with the authorisation of, Parliament. This is another example of Statute Law limiting the effect of Common Law.

Insomuch as the previous regime only allowed such Bailiffs to make peaceful entry, the new law hasn't changed anything. An EA recovering Council Tax will still not be able to make forceful entry (without the express permission of the court).

Furthermore, given the above conclusion that peaceful entry by Bailiffs could not be prevented by "withdrawing permission" for them to enter land, Sch.12 Para.14 of the new law is merely a re-statement of the old position.

Re: Right of access

Laws are there and can and will be broken.problem comes when despite an action being unlawful it is carried out by a Bailiff or other person in any way, There is not an automatic conviction there has to be a process of investigation Court ETC. Until the accused is convicted they have only been accused of a crime.
Commonsense is to avoid if possible a situation where you or others break the law as the legal process is not guaranteed to convict anyone as we have seen in Form 4 cases against Bailiffs fail when a good Barrister gets on the case no amount of signs stating this or that will stop a rogue bailiff gaining entry onto land .

I personally would never bother displaying a notice at my property. I would send it directly to the enforcement agency in question, copying the creditor (the council) in. In my cases, this stopped any subsequent visits which is what I aimed to do. I certainly didn't want a bailiff visiting & then leaving it in the lap of the Gods as to whether he'd take heed of the notice or not. Besides, if it got to that point then the visit fee could have been charged in any case, thus making it futile to remove right of access.

[UnitedFront]

Re: Right of access

Walesman - I entirely agree.

I am hoping that, since the new law clarifies things somewhat relating to EA's behaviour, any action founded upon breach of the new law will stand more chance of succeeding.

For example, going back to the point about Bailiffs (as they were) putting their foot into an open door and trying to force the door open. Under the old law, there were arguments frequently raised that claimed such action to be lawful. Any argument to the contrary would have had to pull bits of the law from many different sources, whereas now Sch.12 Para.24 makes it abundantly clear - no force, whether reasonable or not, can be applied to a person.

Re: Right of access

I would repeat that a private bailiff collecting council tax was not acting under any warrant or writ. A liability order simply determined a debtors liability and gave the private bailiff no powers that were greater than any other member of the general public.

A liability order simply afforded the authority in question further options in which to recover the debt. There is nothing within a liability order that gives a bailiff (EA) any power.

[wales01man]

Re: Right of access

Laws are there and can and will be broken.problem comes when despite an action being unlawful it is carried out by a Bailiff or other person in any way, There is not an automatic conviction there has to be a process of investigation Court ETC. Until the accused is convicted they have only been accused of a crime.
Commonsense is to avoid if possible a situation where you or others break the law as the legal process is not guaranteed to convict anyone as we have seen in Form 4 cases against Bailiffs fail when a good Barrister gets on the case no amount of signs stating this or that will stop a rogue bailiff gaining entry onto land .

[UnitedFront]

Re: Right of access

Good afternoon all.

I rarely find the time to post on forums these days, but I've got a spare few minutes now and felt like trying to clear up a few misconceptions that are perhaps being manifested in this thread.

I'm certainly not trying to pick on or attack anyone here; I would just like to be helpful and (hopefully) clarify a few points.


Statute / Common Law

Going very slightly off topic, I think the whole notion of the government overriding common law using legislation is questionable anyway, and will no doubt be called into question at some stage.

Common Law recognises that Statute Law is supreme. It is part of our constitution that we have a sovereign Parliament - that being a Parliament that can make and unmake any law that it pleases, so long as it does not seek to bind a future Parliament (as, obviously, that future Parliament can also unmake any preceding law in accordance with the principle of Parliamentary Sovereignty).

If you look at most Acts of Parliament, they change and/or adapt and/or bring to an end many common law rules; often which had stood in place for many (possibly hundreds of) years.

Please see one of my posts in another thread, in which I give some substantiation to my point that Common Law recognises Statute Law as supreme.

http://www.legalbeagles.info/forums/...345#post318345


Reforms to Bailiff Law

Was that pre or post the new regulations?

The situation post the new regulations is yet to be tested in court as far as I know. I do know the views of the MOJ and of John Kruse (The Starving Taxpayer will already have this, or similar, elsewhere):

According to the Ministry of Justice from 6th April a householder’s right to refuse or revoke permission to enter their premises will be overridden by Sch.12 para.14(1) which states as follows:

“An enforcement agent may enter relevant premises to search for and take control of goods.”

John Kruse’s view on the above clause is that :

“It is not immediately apparent whether or not this provision does anymore than confirm the existing right of a bailiff holding a lawful warrant to enter property”

and that:

“Whether the courts will agree that the common law on trespass has swept away in so cursory a manner remains to be seen”

Before getting into the new law, it must first be pointed out that even under the pre-reform law, the right for any person (We'll call that person "A") to withdraw consent for another person (person "B") to enter upon A's land, did not extend to the right to prevent someone acting to enforce any kind of court order/writ/warrant etc.

Therefore, whilst private Bailiffs (e.g. Council Tax Bailiffs) could only make peaceful entry and therefore could not force their way past you at the door, they could enter upon any relevant land even if you had expressly told them not to - so long as they could do so peacefully. For the remainder of this post, I will refer to Bailiffs as "Enforcement Officers" or "EAs" so as to adopt the language of the new law.

Moving onto the new law. Sch.12 Para.14 does indeed read as quoted. However, Para.14 does not in itself give EAs the power to force entry.

Whilst there undoubtedly will be litigation based upon these changes, most of the new provision appears relatively clear. They certainly don't present EAs with any sweeping new powers to force entry.

To clarify a few points in the new law regarding the use of force:

Sch.12 Para.17 gives EAs a "general right to use reasonable force to enter a property..." if paragraphs 18, 18A, 19 or 19A apply. I have set out those paragraphs below.

Sch.12 Para.18

This paragraph applies if these conditions are met–
(a) the enforcement agent has power to enter the premises under paragraph 14 [entry without warrant] or 16 [re-entry to inspect or remove goods already taken control of] or under a warrant under paragraph 15;
(b) he is acting under an enforcement power conferred by a warrant of control under section 76(1) of the Magistrates' Courts Act 1980 (c. 43) for the recovery of a sum adjudged to be paid by a conviction;
(c) he is entitled to execute the warrant by virtue of section 125A (civilian enforcement officers) or 125B (approved enforcement agencies) of that Act.

Sch.12 Para.18A

(1) This paragraph applies if these conditions are met–
(a) the enforcement agent has power to enter the premises under paragraph 14 [entry without warrant];
(b) the enforcement agent reasonably believes that the debtor carries on a trade or business on the
premises;
(c) the enforcement agent is acting under a writ or warrant of control issued for the purpose of recovering a sum payable under a High Court or county court judgment;
(d) the sum so payable is not a traffic contravention debt.
(2) “Traffic contravention debt”has the meaning given by section 82(2) of the Traffic Management Act 2004.

Sch.12 Para.19
(1) This paragraph applies if these conditions are met–

(a) the enforcement agent has power to enter the premises under paragraph 16 [re-entry to inspect or remove goods already taken control of] ;
(b) he reasonably believes that the debtor carries on a trade or business on the premises;
(c) he is acting under an enforcement power within sub-paragraph (2).
(2) The enforcement powers are those under any of the following–
(a) a writ or warrant of control issued for the purpose of recovering a sum payable under a High Court or county court judgment;
(b) section 127 of the Finance Act 2008.

Sch.12 Para.19A

(1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 16 [re-entry to inspect or remove goods already taken control of] ;
(b) the enforcement agent has taken control of the goods by entering into a controlled goods agreement with the debtor;
(c) the debtor has failed to comply with any provision of the controlled goods agreement relating to the payment by the debtor of the debt;
(d) the debtor has been given notice of the intention of the enforcement agent to enter the premises to inspect the goods or to remove them for storage or sale;
(e) neither paragraph 18 nor paragraph 19 applies.
(2) For the purposes of a notice under sub-paragraph (1)(d), regulations must state—
(a) the minimum period of notice;
(b) the form of the notice;
(c) what it must contain;
(d) how it must be given;
(e) who must give it.
(3) The enforcement agent must keep a record of the time when a notice under sub-paragraph (1)(d) is given.
(4) If regulations authorise it, the court may order in prescribed circumstances that the notice given may be
less than the minimum period.
(5) The order may be subject to conditions.

Sch.12 Para.21 allows an EA to apply for a warrant which itself allows for reasonable force to be used.

If we look at the effects of the above, they can largely be summarised as follows:

- When executing a warrant to recover sums payable following a conviction for a criminal offence, EAs can use reasonable force to enter premises.

- When executing a writ or warrant recovering the outstanding balance of a judgment debt, EAs can use reasonable force to enter business/trade premises – so long as the debt is not a traffic debt.
- If an EA has previously taken possession of Goods by way of a “controlled goods agreement”, the EA can use reasonable force to enter premises.

Since the new law sets out the circumstances in which EAs can use reasonable force, it must be taken to exclude all other instances of reasonable force – i.e reasonable force can only be used in the circumstances detailed in the new law.

So if we take the example of an EA collecting council tax. The collection of Council Tax (assuming the non-payment has not resulted in criminal conviction and fine) does not fall within the “general right to use reasonable force”. The EA would therefore only be able to enter if invited, or if no force was necessary (Sch.12 Para.14), or if a warrant had been issued by the court specifically permitting the use of reasonable force.

Trespass to the Person

Was that pre or post the new regulations?

It would seem that claims for trespass- whether against land by forcible entry, by violence against the debtor or by wrongful seizure or removal of goods- will no longer be possible in respect of the taking into control of goods.

So far as the above quote relates to force applied against a person, the new law quite expressly prohibits this. The new law would therefore not provide an EA with a defence to any action for Trespass to the Person.

Sch.12 Para.24 states as follows:

(1) The power to enter and any power to use force are subject to any restriction imposed by or under regulations.
(2) A power to use force does not include power to use force against persons [...]

1.

So it would appear to me that any unlawful force that an EA applied to a person could amount to a trespass to the person, even under the new law.

This is probably just a re-statement of the old law. The fact that this is now enshrined in statute does, however, mean that EAs can't force open a front door that the householder is stood behind. Such action used to be taken frequently, with Bailiffs (as they were) often claiming the right to enter via the door which is open. Such behaviour unquestionably exerts force upon the householder and would, therefore, be in direct contravention of Sch.12 Para.24.

Hopefully this post is of some use to you all.