There 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.
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:
- 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.
Bailiffs can be instructed in various ways depending on the type of debt:
- 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.
NewFrom 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.
Bailiffs are allowed to enter premises to take goods, however, this is subject to certain rules.
Who is a vulnerable person?
The 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.
When and how to enter
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.
Forced 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.
A bailiff has to do one of the following to take goods into control:
- 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).
Although 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.
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.
- 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.
Only 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.
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.
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.
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.
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.
Most 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.
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 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.
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.
High Court fees
Costs and expenses
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.
In 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.
If 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.
- 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.
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.