Bailiffs

Bailiffs act on behalf of the court or the creditor to perform a number of tasks such as seize goods to be sold to repay debts, evict people from their homes and execute some arrest warrants. They are also known as enforcement agents. It is important to be aware of their powers and the legislation that governs them as well as your options when dealing with them as their powers vary according to the types of debt they are enforcing.

Scales of justice and gavel on desk with dark backgroundThere are a wide range of enforcement agents operating in England and Wales. Some are employed directly by HMCTS or HMRC, others are private agents enforcing judgments in the County Court or High Court as well as liability orders for council tax, parking and traffic penalties and Magistrates’ Court fines, damages, costs and compensations orders. They can also be used for arrears of child support and maintenance payments and TV licensing fines.

NewNew legislation came into force on April 6th 2014, bringing a radical reform to enforcement law and making most enforcement case law, obsolete. This new legislation is embodied in The Taking Control of Goods Regulations 2013. The emphasis is now more on compliance and agreeing repayment orders rather than just seizing goods. The processes of distress and execution no longer apply and bailiffs are now referred to as enforcement agents.

Types of debt enforced by bailiffs (enforcement agents)

There are differences in terms of powers, fees and the process to be followed depending on the types of debt being enforced. The following can be enforced by bailiffs:

HMRC

  • Civil debts subject to a Count Court or a High Court judgment;
  • Magistrates’ court orders for damages and compensation, fines, costs and taxes;
  • Council tax;
  • Debts to HMRC including income tax, tax credit overpayments, VAT and NI contributions;
  • Maintenance and child support;
  • Traffic and parking penalties; and
  • Commercial rent arrears.
Instructing bailiffs (enforcement agents)

Bailiffs can be instructed in various ways depending on the type of debt:

HCEO

  • Writ of control. They are used to instruct High Court Enforcement Officers (HCEOs) to enforce High Court judgments or County Court judgments over £600 transferred to the High Court for enforcement.
  • Warrant of control to enforce County Court judgments (CCJs), including all debts arising for credit agreements regulated by the Consumer Credit Act.
  • Local authorities can issue a warrant of control to enforce parking and speeding penalties.
  • HMRC can issue a warrant of control for unpaid taxes without the need to go to court.
  • Liability orders. These are issued by the Magistrates’ Court to enable local authorities to recover unpaid council tax and business rates.
  • The Magistrates’ Court can issue a warrant for unpaid fines and other court orders.
The enforcement notice

enforcement noticeNewFrom April 6th 2014, an enforcement notice is required to inform the debtor of a forthcoming visit by enforcement agents. This has had the effect of removing the surprise factor commonly associated with bailiff visits in the past.

The enforcement notice should:

  • Be posted or hand delivered to your home or business premises. Alternatively it can be sent by fax or email or fixed to your premises.
  • Give you at least seven ‘clear’ days’ notice of the intended visit. Clear days do not include the day of service and exclude Sundays and Bank Holidays.
  • Provide full details of the debt that’s being enforced, including details of both the creditor and the court order used to enforce the debt, the amount owed and the fees charged.
  • Tell you how you can pay the debt and about further fees and charges to be applied if you do not pay.
  • Tell you where you can get free advice.

The enforcement notice has the effect of binding all your property, which includes all your goods except exempt or protected goods. This means once the notice is issued, the goods can’t be sold or gifted to anyone else.

Any goods transferred to someone else after the notice has been received can still be taken into control and the new owner is treated as co-owner of the goods by the bailiff.
The bailiff has 12 months from the date on the notice to take control of goods.
Entering premises

Bailiffs are allowed to enter premises to take goods, however, this is subject to certain rules.

Bailiffs cannot enter premises or remain inside if they’ve gained entry, if the only people present at the time are either a child under 16 or a vulnerable person.

Who is a vulnerable person?

vulnerableThe following groups are considered vulnerable by the Taking Control of Goods, National Standards Guidance.

  • the elderly;
  • people with a disability;
  • the seriously ill;
  • the recently bereaved;
  • single parent families;
  • pregnant women;
  • unemployed people; and,
  • those who have obvious difficulty in understanding, speaking or reading English.
A bailiff should show evidence of his identity and authority to enter the premises, including the writ or warrant, upon request.

When and how to enter

Bailiffs can generally only enter premises between 6am and 9pm any day of the week, unless they have a court order saying otherwise. Once they are inside they can remain on the premises if it’s reasonably necessary.
A bailiff can only enter premises where they reasonably believe are where the debtor lives or does business or trade.
‘Premises’ include places other than buildings, for example vehicles, aircraft, caravans and tents.

Bailiffs require a court order to enter other premises to search for goods that may belong to the debtor, such as a rented garage or storage room or someone else’s property. The court will have to be satisfied that there are goods belonging to the debtor worth taking into control.

Cars can only be clamped on the highway or your own drive but not on someone else’s private land or property.
Bailiffs can only enter premises by a door or any other usual means of entry to the premises.

Forced entry

Bailiffs cannot climb over fences, hedges, gates or walls to gain entry.
With a few exceptions, bailiffs cannot force entry.

locksmithForced entry is only allowed in a limited number of cases:

  • To enforce Magistrates’ Court fines, although this power is rarely used.
  • To enter business premises to enforce High Court or County Court judgments.
  • If they are in possession of a special ‘break open’ court warrant which are only issued for certain business tax debts.
Taking control of goods
Goods can usually only be taken into control at your home or place of business or on the highway.

A bailiff has to do one of the following to take goods into control:

boxes

  • secure the goods on the premises, such as your home, in a room, cupboard, garage or outbuilding; or
  • secure the goods on a highway, this would apply mostly to vehicles that can be immobilised (clamped); or
  • locking up business premises, which only applies to the business part of the premises, i.e. not to any residential accommodation such as a flat or bedsit attached to the business; or
  • remove the goods immediately (impounding them); or
  • entering into a controlled goods agreement (formerly known as walking possession).
Goods cannot be taken into control if the only individual present is a child under 16 or a vulnerable person as defined above.
If a bailiff doesn’t follow the proper procedure, you may be able to claim damages.
Goods cannot be secured in any way that prevents access to exempt goods or other essential facilities, or adequate means of entering and leaving the premises, including emergency exits.

fragileAlthough goods can be removed immediately, this is often not an option due to the cost of removing and storage. The goods must be stored in a safe and secure location within a reasonable distance of the place where they were taken into control. More commonly, there will be a controlled goods agreement, which replaces the previous walking possession agreement. In this case you would retain custody of the goods but you would acknowledge that the bailiff has taken control of them and you would agree not to sell, remove or otherwise dispose of the goods unless the debt is paid.

The agreement should:

  • be signed by both the bailiff and yourself or another authorised adult (for example your partner);
  • have a date and a reference number
  • give the names of the people entering into the agreement
  • provide contact details of the enforcement agent
  • give details of the amount owed;
  • include the terms of the repayment arrangement; and
  • provide a list of the goods taken into control, or attach an inventory.

Inventory

The bailiff must provide you with a detailed inventory of the goods taken into control, which should include:

  • your name and address and the bailiff’s name and address;
  • details of any co-owners of the goods (such as your partner or other family members);
  • confirmation of them having been taken into control; and
  • a detailed list of the goods taken into control including colour, make, model, serial or registration numbers, etc.

Immobilised vehicles

clamped car

  • Unless you voluntarily surrender the keys of our vehicle to the bailiff, the vehicle must be secured by an immobilisation device (such as clamping). The device will be provided by the bailiff.
  • The vehicle must remain immobilised in place for at least two hours before it being removed to storage, unless an agreement to repay the debt or release the vehicle is reached.
  • The bailiff should provide you with a written warning.
  • The vehicle must be stored in a secure place.
What goods can be taken into control?

toysOnly goods that are owned by yourself (including jointly owned goods) can be taken into control. Goods that belong to a third party cannot be taken into control. If they are taken, they should write to the bailiff company with full details of the goods and ownership. If the goods are jointly owned, the co-owner (for example your partner or another family member) should be included in all proceedings and receive their share of the proceeds of any sale.

Goods that are used exclusively by children cannot be taken even if owned by yourself.
Goods can only be taken to cover the value of the debt plus a certain amount for costs.
If the value of goods that can be taken is too low, proceeding with enforcement is not justifiable.

Certain goods are exempt and cannot be taken into control. REgulation 4 of The Taking Control of Goods Regulations 2013 sets out what items are exempt.

4.—(1) Subject to paragraph (2) and to regulation 5, the following goods of the debtor are exempt goods—

(a) items or equipment (for example, tools, books, telephones, computer equipment and vehicles) which are necessary for use personally by the debtor in the debtor’s employment, business, trade, profession, study or education, except that in any case the aggregate value of the items or equipment to which this exemption is applied shall not exceed £1,350;

(b) such clothing, bedding, furniture, household equipment, items and provisions as are reasonably required to satisfy the basic domestic needs of the debtor and every member of the debtor’s household, including (but not restricted to)—

(i) a cooker or microwave;

(ii) a refrigerator;

(iii) a washing machine;

(iv) a dining table large enough, and sufficient dining chairs, to seat the debtor and every member of the debtor’s household;

(v) beds and bedding sufficient for the debtor and every member of the debtor’s household;

(vi) one landline telephone, or if there is no landline telephone at the premises, a mobile or internet telephone which may be used by the debtor or a member of the debtor’s household;

(vii)any item or equipment reasonably required for—

(aa) the medical care of the debtor or any member of the debtor’s household;

(bb) safety in the dwelling-house; or

(cc) the security of the dwelling-house (for example, an alarm system) or security in the dwelling-house;

(viii) sufficient lamps or stoves, or other appliance designed to provide lighting or heating facilities, to satisfy the basic heating and lighting needs of the debtor’s household; and

(ix) any item or equipment reasonably required for the care of—

(aa) a person under the age of 18;

(bb) a disabled person; or

(cc) an older person;

(c) assistance dogs (including guide dogs, hearing dogs and dogs for disabled persons), sheep dogs, guard dogs or domestic pets;

(d) a vehicle on which a valid disabled person’s badge is displayed because it is used for, or in relation to which there are reasonable grounds for believing that it is used for, the carriage of a disabled person;

(e) a vehicle (whether in public ownership or not) which is being used for, or in relation to which there are reasonable grounds for believing that it is used for, police, fire or ambulance purposes; and

(f) a vehicle displaying a valid British Medical Association badge or other health emergency badge because it is being used for, or in relation to which there are reasonable grounds for believing that it is used for, health emergency purposes.

Additionally, an item that is physically being used at the time the bailiff is taking control, for example a machine or tool being operated by yourself, a household member or a subcontractor.

You can dispute that certain goods taken into control should be exempt, by writing to the bailiff company.
Removal and sale of goods

The purpose of taking control of goods is to sell them to recover the money owed, however, actual sales of goods are not very common. If the goods are still in your home, they need to be removed to be sold. The general rules regarding rights of entry apply to re-entry to remove goods.

Bailiffs enforcing certain debts such as fines and taxes can force re-entry without warning. For other debts, bailiffs may apply to the court for an order to permit forcible re-entry.
A notice of re-entry should give you at least two clear days (excluding the day of service, Sundays and Bank Holidays) and should be hand-delivered or sent by fax or other means of electronic communication. They cannot be sent by post.

Once the goods have been removed, the bailiff must provide a notice of removal with a list of all the items removed, unless this list is identical to the controlled goods inventory previously supplied. It should also tell you how to pay to avoid your goods being sold.

A bailiff must leave the premises, such as your home, as effectively secured as they found them/it. They must also take good care of the goods removed and be kept in the same condition they were found.

auctionMost goods cannot be sold sooner than seven clear days after their removal, the only exception being perishable goods which can be sold the day after removal. Perishable goods include food as well as some seasonal items that would become unsaleable after the seven days have elapsed.

The bailiff should provide you with a valuation of the removed goods and give you an opportunity to obtain an independent valuation. They should also give you a minimum seven clear days’ notice of the date of sale. The sale must take place within 12 months from the day the bailiff took control of the goods.

The sale must be by public auction, including an online auction, unless a court allows any other kind of sale on application from the bailiff.

A sale cannot be completed if there is an outstanding third party claim of ownership.

After the goods are sold, you should be provided with a statement containing the following information:

  • a list of the items sold
  • the amount realised for each item;
  • the proceeds of the sale
  • a breakdown of how the proceeds were split between the debt and cots;
  • recoverable expenses incurred with receipts.
Fees and costs

feesFees and costs have always been the source of much argument between debtors and bailiff companies. Bailiffs can recover their costs and expenses from the debtor, which can add a considerable amount to the sum outstanding. This is more noticeable with relatively small debts such as parking penalties, where the bailiff’s fees often exceed the fine itself.

Bailiffs can charge some fixed fees and others are calculated as a percentage of the sum to be recovered and there are also some recoverable expenses, mostly those related to the sale of the goods.

Stages of the enforcement process

  • Compliance. These are preliminary activities such as:
    • receiving instructions from the creditor
    • confirming your whereabouts
    • drafting and sending the enforcement notice
    • initial contact
    • processing payments and installment plans
    • general admin
  • Enforcement. This is the levy process itself from taking control to removing the goods. High Court Enforcement Officers (HCEOs) split this process into two:
    • First stage. Applies until you enter into a controlled goods agreement with the HCEO.
    • Second stage. Applies when you do not enter into an agreement and covers all enforcement activities until the final sale or disposal of the goods. This stage also applies if you entered into an agreement but then breached it.
  • Sale or disposal. This is the final part of the process, which includes preparation for the sale, selling the goods, reporting and returning any unsold goods.
A fee is chargeable as soon as any of the activities mentioned starts, even if not all of them are carried out.

The fees and expenses are recovered from the proceeds of the enforcement process which includes both the proceeds from the sale of goods and any payments made by yourself.

Standard fees

StageFee
Compliance£75
Enforcement£235
Sale/disposal£110
For debts over £1,500, the enforcement and sale fees my be increased by an additional 7.5% of the amount in excess of £1,500.

High Court fees

StageFee
Compliance£75
First enforcement£190
Second enforcement£495
Sale/disposal£525
If you enter into a controlled goods agreement and do not breach it, only the first stage enforcement fee will be charged.
For debts over £1,000, the first enforcement and sale fees my be increased by an additional 7.5%.
VAT should not be charged on fees.

Costs and expenses

Till receipts

In addition to their fees, bailiffs can recover their costs and expenses such as:

  • the cost of using a locksmith if forcible entry is required;
  • storage costs of goods removed;
  • commission paid to the auctioneer, limited to 15% of the amount realised in the sale (7.5% for internet auctions);
  • auctioneer’s expenses;
  • advertising costs for the sale;
  • court fees for applications made by the bailiff.

The costs must be reasonable and actually incurred in the process of storing and selling the goods. If there are any other expenses the bailiff wants to recover, they would have to apply for a court order and justify that such expenditure was a necessary part of the enforcement process.

When dealing with multiple warrants, the bailiff must take control of goods under all of them at the same time and sell them together. The bailiff must minimise the costs recoverable as much as they can. The compliance fee can be recovered separately for each warrant.
When dealing with vulnerable persons as stated by the Taking Control of Goods: National Standards Guidance, the bailiff may not be able to recover fees for the enforcement stages unless they have given them ample opportunity to get help and advice with the enforcement process.
If you wish to dispute any fees charged, you can apply to the relevant court to assess the bill on an N244 form. The court can only assess whether the fees were calculated correctly and should have been applied.
Complaints

complaintsIn the past, bailiff action has been the source of many disputes and complaints. People were allegedly pushed and even physically assaulted by bailiffs and the police were often called. The new regulations and guidance should go some way towards limiting the excesses of the enforcement industry but there will invariably be times when people may need to complain.

In many cases, the argument should be with the creditor rather than the bailiff company, usually to dispute whether bailiffs should have been instructed in the first place. The Taking Control of Goods: National Standards Guidance states that creditors should act proportionately when using bailiffs. The guidance also says that creditors are ultimately responsible and accountable for the actions of agents acting on their behalf.

7. Creditors should remember that enforcement agents are acting on their behalf and that ultimately they are responsible, and accountable, for the enforcement agents acting on their behalf.

8. Creditors should act proportionately when seeking to recover debt, taking into account debtors’ circumstances.

9. Creditors must notify the enforcement agency of all payments received and other contacts with the debtor, including repayment agreements made with the debtor.

10. Creditors have a responsibility to tell the debtor that if payment is not made within a specified period of time, action may be taken to enforce payment.

11. Creditors agreeing the suspension of a warrant or making direct payment arrangements with debtors must give appropriate notification to and should pay appropriate fees due to the enforcement agent for the work they have
undertaken.

12. Creditors must not issue a warrant knowing that the debtor is not at the address, as a means of tracing the debtor at no cost.

13. Creditors must provide a contact point at appropriate times to enable the enforcement agent or agency to make essential queries, particularly where they have cause for concern.

14. Creditors must consider the appropriateness of referring debtors in potentially vulnerable situations to enforcement agents and, if they choose to proceed, must alert the enforcement agent to this situation.

15. Creditors should ensure that there are clear protocols agreed with their enforcement agents governing the approach that should be taken when a debtor has been identified as vulnerable.

16. Should a debtor be identified as vulnerable, creditors should be prepared to take control of the case, at any time, if necessary.

17. Creditors should inform the enforcement agency if they have any cause to believe that the debtor may present a risk to the safety of the enforcement agent.

18. Creditors should have a clear complaints procedure in place to address complaints regarding their own enforcement agents or external enforcement agents acting on their behalf.

Make sure you inform any creditors who can use enforcement agents of your circumstances, including anything that could put you within the vulnerable category as stated in the guidance. Provide them with an income and expenditure form to back up any repayment offer; if you can’t pay, say why. If, after all this, they still choose to instruct bailiffs, you would have a cause for complaint.

complaintIf the complaint is about the bailiff’s conduct itself, you may also want to complain to the bailiff company in the first instance, as well as to the professional association that the bailiffs belong to, such as the High Court Enforcement Association and the Civil Enforcement Association. These bodies have complaints procedures, however, you are expected to complain to the enforcement company in the first instance.

For council tax enforcement, you should complain to the local authority monitoring officer to start with, if you get no satisfaction you can escalate to the Local Government Ombudsman. For tax enforcement, you can address your compliant to the Adjudicator’s Office.

If the bailiff’s behaviour was inappropriate and in breach of the guidance, you may consider a complaint against the bailiff’s County Court certificate. This can be done on form EAC2. No fee is payable and you wouldn’t be liable for costs, unless the judge regards your grievance an abuse of process. This course of action would be appropriate in cases such as when a bailiff:

  • assaults you or a member of your family or uses any kind of physical violence;
  • becomes abusive and threatening, uses foul language;
  • forces his/her way in without a relevant court order allowing forcible entry;
  • enters your home when your children (under 16) are home alone;
  • takes advantage of an elderly or disabled person or someone who has learning difficulties;
  • insists on taking exempt goods or those who are obviously used by your children.
There is no equivalent to certification for High Court Enforcement Officers (HCEOs).
Dealing with bailiffs
NewIf you are facing bailiff action, don’t despair! Fortunately, things are much better now than before the new regulations came into force in April 6th 2014. Nowadays you are entitled to at least 7 clear days’ notice before any bailiff visits you and there are specific rules that must be followed when attempting enforcement.

Useful tips

lightbulb

  • Do not let the bailiffs in, whatever they say, you are not obliged to do give them access. Don’t fall for the old trick of asking you to let them use your toilet or phone (less common in the mobile age than in the past).
  • Anyone over the age of 16 can let the bailiffs in so make sure you tell your partner and anyone else at home, including housemates/flatmates/roommates not to let them in.
  • If you have visitors at home, make sure you, or someone who knows the situation, answers the door.
  • If you wish to talk to the bailiff, do so through the letterbox or through the door.
  • If they insist that they have the right to force entry, ask them to show you the court order that says so, they can push it under the door or put it through the letterbox
  • Move your car away from your home. If you can, park it inside within someone else’s land (with their permission of course), where it cannot be clamped.
  • Take any other goods you may wish to protect (such as a motorbike or bike) inside the house.
  • Lock any outbuildings including your garden shed. They can’t break them open but they can take goods from outbuildings left unlocked.
  • Keep all external doors and windows locked. Under new regulations, they are not supposed to sneak in through an open window as was the case prior to April 2014, however, it’s best to be safe than sorry.
Bailiffs will try to visit more than once, so stay alert.
If the bailiff fails to take control of goods, they will return the account to the creditor however, this isn’t the end of the problem, you will still have to come to an arrangement with the creditor.
If the bailiffs have already been inside your home, they can force re-entry to remove the goods.

Dealing with the creditor

  • If the debt is a County Court judgment, you should apply to suspend the warrant using form N245. The form has a section for you to submit your financial statement and make a repayment offer. If you are chronically ill, disabled or on benefits, even a token offer of £1 a month should be accepted, provided its backed by a suitable financial statement.
  • For action in the High Court, the application should be on form N244.
  • There is no equivalent process for Magistrates’ Court fines, however, it’s always worth contacting the fines officer.
See above whether you fall into one of the categories that can be considered as vulnerable under the guidance. You don’t have to be seriously ill or disabled to be considered vulnerable; you could be considered vulnerable if you are unemployed, pregnant, a single parent, over retirement age or if you have recently lost a loved one.
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You don’t have to let the bailiffs in. They cannot force their way in unless they have a special court warrant and these are issued infrequently. Keep your doors locked and windows closed!
Bailiffs can take control of goods outside your home, for example cars, motorbikes, bikes, lawnmower and equipment stored in an unlocked shed.
If you have a car, park it in a locked garage or well away from the property. If the bailiffs locate your vehicle on a highway, they can clamp it or remove it, however, they cannot do so if it’s on someone else’s private land or property.
If you can't afford your CCJ repayments, you need to apply for a variation to avoid enforcement action.
See variations.