Knocking on a Locked Door – Regulating Bailiffs

It’s well known and understood that if you owe someone money they can arrange for bailiffs to seize property belonging to you and for them to sell it to cover the debt.  What is less well-known is that there are different sorts of bailiff, and indeed enforcement officers, and that the law relating to debt collection is complex and often centuries old.

Each year around four million cases are passed to bailiffs with a value estimated at over £1billion.  Non-payment of council tax meant last year there were almost 3 million summons issued with around half of the cases being passed to bailiffs for collection. That’s a lot of people coming in to contact with bailiffs.

But what is a bailiff and broadly what can they do?  Well there are County Court bailiffs and High Court enforcement officers.  Then there are Certificated bailiffs and private non-certified bailiffs.  Generally bailiffs must only use peaceful means of entry – that doesn’t mean pushing past someone.  Then again, in certain circumstances a bailiff can break in.  Bailiffs can seize goods – but not all goods.  Clear?

Complaints are not uncommon, indeed last year alone there were almost 25,000 private bailiff cases referred to the Citizen’s Advice Bureaux, but who to complain to depends upon the type of bailiff and the nature of the complaint.  Moreover, while parts of the enforcement industry are strictly regulated others have only informal regulation through trade associations.  And while some businesses carefully train their staff, others have, shall we say, a less rigorous approach.

There are also sadly too many cases of bailiffs acting aggressively and incorrectly applying these assorted laws.  Anecdotes and documented cases abound about bailiffs clamping vehicles used for work, seizing children’s toys, tricking their way in to a property, claiming there have criminal warrants, and ignoring the cases where people have specific vulnerabilities.

And then there are the fees. It is widely accepted that the current fee structure is complex with each enforcement power having its own costs arrangements.

Still not clear?

Well, it’s hardly surprising.  Bailiffs are covered by a variety of laws, secondary legislation and common law.  This complexity isn’t good for the debtor, the creditor or even the bailiff.  Trying to train a bailiff must be as big a nightmare as knowing if the bailiff at your door is acting correctly.

A big part of the problem is the long history of amending and adding to the legislation governing bailiffs.  More recently an attempt was made in the Tribunals Courts and Enforcement Act 2007 to sort out this mess, but much of the act as it relates to bailiffs didn’t come in to force before the 2010 General Election.

The current government published updated voluntary guidance in the form of the National Standards for Enforcement Agents which sets out behaviour to be expected from bailiffs.  However, critics have pointed out that there are only six small changes from the original document and this clearly doesn’t constitute a major reform of the law.

On 17 February 2012 the government issued a consultation paper, “Transforming bailiff action”, which outlined the reforms being proposed, many of which would be achieved by implementing Part 3 of the 2007 Act.  The consultation closed on 14 May 2012 and yet here we are some six months later still waiting for the government’s response – or better still some legislative proposals.

So we are left asking why given the confused mess that is our bailiff system nothing has been forthcoming.  It can’t be because of the coalition’s rule about not bringing in new laws unless old ones can be removed, given the long list of laws that could be swept away by simplifying the law.  Could it be the workload at the Ministry?  Well observers only need to look at the paucity of legislation before parliament to see that there are opportunities to act.

An amendment has been tabled to the Crime and Courts Bill, currently being discussed in the House of Lords, to be debated today (4 December). It’s a start but is unlikely to provide the solution – what we need is a proper law to bring all the various laws, guides and systems up to date and in one place.

I would hope that given the economic nightmare that is driving more people into the arms of debt collection the government would move swiftly to respond to its consultation and set out a clear framework so if the knock on the door comes it is from an enforcement officer who knows the law, has had proper training, is registered and regulated, and then maybe people can concentrate on the underlying issue of indebtedness, not a system that is fatally flawed.

Rob Flello MP is the Shadow Justice Minister with responsibility for bailiffs

Amendment 111 to the Crime and Courts Bill in the name of Baroness Meacher and Lord Beecham will be debated in the House of Lords today (Tuesday 4th December)