Right of access

[Tools]

Re: Right of access

ST, I think there has been some cross purpose/misunderstanding here.

No-one has questioned your motives and there was no need to direct your comments at Miss FM, unless I am missing something ?

[Guest]

Re: Right of access

I am an avid defender of the notice, as stated, it has worked for me in the past. I feel that I'm being accused of being some kind of criminal or FMOTL freak for doing something that has helped vulnerable people and also stopped a bailiff company from implementing fees that were not compliant with legislation. Bear in mind that the council had also profited in the process of obtaining the liability order, which is also not compliant with legislation. So that's the creditor AND their agent who have broken the law and I'm supposed to feel guilty for not paying fees that weren't necessary or essential?

There appears to be a sheep mentality on these boards where everyone comments on this subject without ever experiencing either success or failure.

Moving forward, there is doubt from many quarters whether a notice will be effective under new legislation so the sensible advice would be to point this out to a debtor. There would of course be no harm whatsoever in writing to an enforcement agency, informing them that their implied right of access had been removed. It would only cost the price of a stamp to do this.

[Wombats]

Re: Right of access

Moving forward, there is doubt from many quarters whether a notice will be effective under new legislation so the sensible advice would be to point this out to a debtor. There would of course be no harm whatsoever in writing to an enforcement agency, informing them that their implied right of access had been removed. It would only cost the price of a stamp to do this.

I think that is spot on; sending the notice will not harm at all, nor will placing it at the entrance to your property boundary if you have that ability (some face out straight onto a pavement). For DCA's it should technically work.

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. As I mentioned earlier, there are several areas which are, IMO, contentious and will no doubt be subject to court challenges and a series of SI's to try to resolve any teething problems. Personally I find that when SI's are added to change enacted legislation, it can become very hard to read. Thereagain, some is pretty tricky anyway, fortunately not TCGR.

[enquirer]

Re: Right of access

For which there would appear to be no satisfactory legal redress ...

Damages and injunction. Repeated incursions could well be held to amount to Harassment, which is both a crime and a tort.

[wales01man]

Re: Right of access

This type of Notice may work for some doubtful that it would work in all cases mores the pity if it was soo good there would be no bailiffs as they could not gain access to any property

[Crazy council]

Re: Right of access

In this posters case. The covenent of acsess on the deeds of the property will define acsess rights. Ie. You could not remove implied rights of acsess tovthe shared land without a court order.

Also. would love to see one of these argued in court just for the entertainment value

[Guest]

Re: Right of access

This type of Notice may work for some doubtful that it would work in all cases mores the pity if it was soo good there would be no bailiffs as they could not gain access to any property

As previously stated, there is doubt that the notice will work at all post April 6th.

Pre April 6th, a private bailiff collecting council tax was not instructed to do so by a court (as was the case in most other types of enforcement) A liability order was simply confirming that a debtor was liable for a debt, not an instruction by the court for civil enforcement to commence.

Regulation 45 of the council tax enforcement regs stated a council may levy the appropriate amount of distress. In the absence of a warrant of execution, there is doubt that a private bailiff had any greater power than any other member of the general public.

This is why I feel that the notice was successful for stopping visits for council tax arrears. I would not have held much faith in using it for other types of enforcement.

[Amethyst]

Re: Right of access

One was argued in court a couple years back and it failed - I'm not sure as I haven't read the full judgment whether it failed as a notice of removal of implied right of access or because of the attached penalty fee, or both. The subject has been discussed over and over and over on here and other forums.

The letter was originally used for doorstepper visits from DCA's and has been adapted over time for use with Bailiffs to limited success and oddly to an insane amount of arguing about it. Often with individuals ending up attacking each other and I'd rather that did not happen here. I'm not sure why the bailiff forum causes such arguments, its an emotive subject, and a complex area, although hopefully the new regs have improved matters there, so can we keep discussions to the issues and not do the personal biting bits pls.

I don't have opinion one way or t'other as personally I prefer to advise people to sort things out before they ever got to the stage where a notice might be considered necessary.

[Guest]

Re: Right of access

It was in January last year. The case was for a claim of damages for trespass (which failed)

It is very hard to claim a loss or damages just because someone has walked on your drive which is why I believe legal redress is not really an option.

In an ideal world, everyone should sort things out before enforcement is considered (especially with the new fees). Unfortunately, we do not live in an ideal world and there are many cases of genuine hardship out there. Sometimes a choice between buying food, money in the electric meter or a monthly council tax instalment is a realistic scenario for people.

[Amethyst]

Re: Right of access

It was in January last year. The case was for a claim of damages for trespass (which failed)

It is very hard to claim a loss or damages just because someone has walked on your drive which is why I believe legal redress is not really an option.

Ahhh there's me wishing my life away, ta.

In an ideal world, everyone should sort things out before enforcement is considered (especially with the new fees). Unfortunately, we do not live in an ideal world and there are many cases of genuine hardship out there. Sometimes a choice between buying food, money in the electric meter or a monthly council tax instalment is a realistic scenario for people.

It is a choice faced every bloody day here, gets rather tiring, and probably faced by a large number of people on this forum.

Communication is key.

[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.

[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 .

[Guest]

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.

[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.

[Guest]

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.