Bailiff regulation: back to the future

22The famous judge Lord Denning once described bailiffs seizing the goods of people as an ‘archaic remedy’, dating back to medieval times.  In 1986 the Law Commission recommended the abolition of distress for goods, and bailiffs seemed a thing of the past – the remote past.

All this changed in April 1990 with the introduction of the poll tax, which imposed liability for local tax debt upon millions of people, a feature which remained with the council tax. The poll tax collapsed in the face of non-payment but the principle of liability for millions of people continued. Coupled with a growing underclass in poverty in Britain and a working population that had gone on a credit binge encouraged by banks, suddenly, it was boom-time for bailiffs when public authorities and credit card companies set out to recover their money. Continue reading

Dealing with Bailiffs

If you owe money, one of the ways your creditors might try to get their money back is by using bailiffs. The role of the bailiffs is to take your goods away and sell them to raise money to pay your creditors.

As a charity that supports vulnerable people in debt we frequently have to deal with bailiffs and have recently experienced an increase in the number of clients contacting us for advice on bailiff related matters.  Our clients usually call when they have had a nasty visit and/or letter from the bailiff company demanding money and informing them that they will enter the property to seize goods to settle the outstanding amounts. This often leaves vulnerable households worried, under extreme pressure and at risk of taking drastic action such as taking out pay day loans. A lot of our clients are unaware of the powers these bailiffs actually have and cannot see beyond their aggressive and threatening behaviour.

We always advise our clients they do not have to open the door to the bailiffs and that they must ensure they keep their doors and windows securely locked. Although in most circumstances bailiffs are not allowed to force their way in to a property they are however allowed to enter via peaceful means, such as climbing through an open window. Bailiffs can however force entry to your property and seize your goods without notice if they have already gained entry once via peaceful means. This means that you must take care to ensure that you don’t allow them entry under any circumstances.

Once they gain entry they can place walk in possession orders on goods belonging to the debtor, which they can then auction off if the debt remains unpaid. If a bailiff gains entry to a property their charges immediately go up. Yet goods sell at bailiff auctions for derisory sums. This means that ultimately if bailiffs seize goods it is highly unlikely the prices goods fetch will cover the enforcement costs, let alone the original debt.

To this extent, in the 21st century the whole idea of seizure of goods is a legal fiction for if it actually happens as statute lays down, everyone including the bailiffs and their creditors will be out of pocket and the debt will not be paid off. Bailiffs are therefore used simply as a threat to try and intimidate you into paying your debts

Fortunately there are rules and policies about how bailiffs should behave. They are not allowed to threaten you or pretend to have more legal powers than they really have. They must take special care when dealing with people who are considered vulnerable, for example if you’re elderly, disabled, seriously ill or find it difficult to speak, understand or read English. The National Standards for Enforcement Agents also require bailiffs discovering a vulnerable situation should report the matter back to the creditor. The better bailiff companies are doing this and creditors need to build this into the controls they exercise over debt recovery. If you find bailiffs breaking any of these rules you may have grounds for a civil case against them and should report it immediately.

For more advice on dealing with Bailiffs see the Citizens Advice Bureau guide here.

Record Levels of Fines Uncollected: Privatisation of enforcement one of the factors to blame

Yesterday, The Sun carried an article detailing £2billion lost to magistrates courts in upaid fines and confiscation orders. However, as our Senior Lawyer Alan Murdie argues below, this is due to the ineptitude of privatised, and poorly regulated, bailiffs.

It is a truism that a legislative change that looked wonderful on paper can have wholly unexpected and detrimental consequences in practice. This can be seen with the decisions made since 2003 to outsourced and privatise the collections of fines which have resulted in record levels of fines not be recovered. This even made headlines in The Sun newspaper on November 22nd 2011 recording how over £ 1 billion owed remains unpaid, yet at a time when bailiffs collecting fines have more power than ever before. Obviously, the recession and growth in poverty play a part. But it has also been caused by procedural changes in the magistrates’ court system which the Zacchaeus 2000 Trust has long opposed. In the Courts Act 2003 and the Fines Collections Regulations 2006 laid the basis for a system whereby magistrates’ courts were no longer responsible for enforcing fines. Previously under the Magistrates’ Courts Act 1980 the clerk to the court (now the Justices’ Chief Executive) was responsible for fine enforcement using a wide range of statutory powers, including court bailiffs, attachment of earnings, income support, charging orders, the High Court and bankruptcy proceedings to recover the fine. Effectively, the court that imposed the fine was responsible for getting it back. If there was a problem with one method then it was sent back to court to try another way to make the defendant pay. If something went wrong on collection, the court could immediately step in and put it right. However, thanks to legislative changes the enforcement of fines was given to a fines collection officer and taken away from the court. At the same time private companies were hired to collect fines, in order to make a profit. As a result after bailiffs have failed to collect the fine by a letter or visit the matter does not go back to court to try another method (such as attachment of earnings or benefit deductions) is never attempted. Instead the bailiff holds on to the debt, hoping to recover the fine and fees in the future. It becomes just one of many fines on a long list. But the longer enforcement is left, the harder and less likely it is that the fine will be recovered. The position is worsened by the fact that many of the magistrates’ courts which imposed the original fines may no longer exist. The closure of magistrates’ courts and sell off of magistrates’ courts continues apace – so court that originally imposed the fine may well have shut down and the court staff transferred or made redundant. So it is quite possible no-one is left checking up on whether the fine is ever satisfied. Indeed, one may even wondered if there are any effective checks being undertaken by the Ministry of Justice on the bailiffs once they have collected some or all of the money. Clearly there is a risk to the public purse where private companies are doing what was originally a state function if no proper audit safeguards are in place, or where a bailiff’s firm sits on the money to earn interest before passing it back to the Ministry of Justice. Certainly, history does not show a positive record when fine and tax collection is farmed out to private individuals and companies. From the examples of bad tax collectors in the New Testament, in the Byzantine Empire as it failed and in pre-Revolutionary France, the farming out responsibility for money owed to the state or the Crown is a story of disaster. The latest dire figures suggest we may be seeing a 21st century equivalent here in Britain.

The Great Repeal Bill

The coalition government has pledged that it will get rid of unnecessary laws and regulations in the interests of creating a freer and more inclusive society.

It is asking the public to nominate laws which should be repealed and we have nominated the laws which allow bailiffs to use force to gain entrance to premises and generally for the purposes of enforcement. The recent introduction of this power overturned over 400 years of laws upholding the principle that “ An Englishman’s home is his castle” and that no one ,not even the State, can enter private premises uninvited without a specific court order.

If you would like to support our proposal please follow the link below: (Update: the site is now closed although the content is accessible via the Your Freedom archives).

You will need to register at the above website before you can vote and comment.