The use of bailiffs to enforce debts by seizing goods has long been the most effective and controversial method of debt collection available in English law.

The law as it stands today - a mixture of common law, statute and case law, some of which dates back to medieval times - is archaic, complex and confusing, and in urgent need of reform, a need that the passing of the Human Rights Act has only served to emphasise.

For many years, Citizens Advice Bureaux have reported a wide range of problems experienced by clients as a result of bailiff action. Since the ntroduction of the community charge in England and Wales in 1990, and its successor the council tax in 1993, this volume of evidence has grown 1 . Citizens Advice has published a series of evidence reports, culminating in Undue Distress in 2000, highlighting the distress and misery experienced by CAB clients as a result of bailiffs using distress to enforce debts, including council tax arrears. These problems have been compounded by the absence of effective independent monitoring, complaints monitoring and mechanisms for redress.

In 1998, the government announced an Enforcement Review. Three years later, it published a Green Paper, Towards Effective Enforcement, which took forward most of the recommendations contained in Professor Jack Beatson’s Independent Review of Bailiff Law. The Green Paper proposed that there should be a single piece of legislation governing the seizure of goods, a new fee structure, and a commission to regulate all bailiffs. In 2002, the National Standards for Enforcement Agents, a set of minimum standards with which all bailiffs are expected to comply, were introduced as a stopgap measure in the absence of any new legislation. However, compliance with the standards is not monitored and they do not include any complaints or appeals procedures or provide any accessible means of redress. The following year, the government published a White Paper, Effective Enforcement, which followed the Green Paper in proposing a complete reform of bailiff law and a new, unitary system of regulation, powers and fees.

Finally, on 25 July 2006, the government published a Draft Tribunals, Courts and Enforcement Bill, which includes a single procedure for taking control of goods. However, proposals to regulate the activities of bailiffs were shelved for the time being. This retreat from giving protection to vulnerable debtors occurs at the same time that the Bill gives bailiffs the right to apply to the court for the power to use reasonable force to enter premises. This discretionary power, if exercised, will mean that debtors will no longer be able to refuse bailiffs entry. It will inevitably mean that even more CAB clients will be reporting problems about bailiffs to bureaux.

Bureaux have been reporting a wide range of problems experienced by clients because of bailiff action to collect unpaid council tax. The most common kinds of problems are:

Misrepresenting powers of entry

Bailiffs collecting council tax have no power to force initial entry or break open an outer door if it is either locked or bolted. They must enter a property peacefully through an unlocked door or through an open window. They may not enter through a closed window, even if it is not locked. They cannot obtain a court order to gain entry and the police have no power to force entry on their behalf.

Bailiffs can only force entry if they have previously gained peaceful entry. However, bureaux have continued to report problems with bailiffs misrepresenting their powers of entry, falsely claiming that they can force entry or have a warrant that allows them to force entry or that they will return with the police who will force entry on their behalf.

This problem has been further complicated by the implementation of Section 27 and Schedule 4A of the Domestic Violence, Crime and Victims Act 2004, which, since 18 July 2005, have allowed bailiffs to force entry in connection with unpaid magistrates’ courts fines. Bureaux have reported that some bailiffs’ firms have claimed that this power extends to other debts, including council tax arrears. This is not the case.

Threats of imprisonment

Bureaux have reported that bailiffs have threatened clients with imprisonment if, for example, they do not allow the bailiffs entry to the debtor’s home. A debtor cannot be sent to prison for refusing to allow the bailiffs entry. In fact, the debtor is entitled to refuse the bailiffs entry and is allowed to use reasonable force in resisting bailiffs who have unlawfully tried to push their way in.

A debtor can only be sent to prison for council tax arrears if

(i) the local authority decides to apply to the magistrates’ court for a means enquiry hearing,

(ii) a means enquiry hearing is then held at the magistrates’ court, (iii) the magistrates decide that the debtor has either wilfully refused or culpably neglected to pay, and

(iv) the magistrates have examined all the other payment methods available but found that none will be effective.

Unlawful fees

The fees that bailiffs are allowed to charge are also a cause for concern and are available here ( link to resource material). Bureaux, all over the country have reported a variety of problems about the fees charged by bailiffs. These include fees being charged when they:

• Are not permitted, e.g. when no levy has been made

• Are spurious, e.g. ‘administration’ and ‘clamping’ fees

• Have not been “actually and necessarily” incurred, and

• Are unreasonable and disproportionate to the amount of the debt being collected

Under the National Standards for Enforcement Agents, bailiffs must provide a breakdown of the fees charged if this has been requested.

Harassment and intimidation

The National Standards for Enforcement Agents states that “Enforcement agents must carry out their duties in a professional, calm and dignified manner. They must dress appropriately and act with discretion and fairness.”

Many bureaux, though, have reported alarming instances of bailiffs harassing and intimidating clients, a problem exacerbated by the lack of effective independent monitoring, complaints monitoring, and clear and accessible mechanisms for redress.

Problems negotiating repayment

Private bailiffs collecting council tax need to have a reputation for effective enforcement in order to continue to receive business. They also want prompt payment of their fees. For these reasons, it is in their interests to get the debtor to pay as near the full amount due as possible, as quickly as possible. This situation is further complicated by the way in which the contracts between local authorities and bailiff firms seem to vary from district to district. Many bureaux have reported problems when trying to negotiate realistic, affordable repayment plans with bailiffs. Local authority contracts very often tie bailiffs in to a short collection period. However, local authorities will very often permit bailiffs to vary this if, e.g. the debtor is in receipt of Income Support or Income-based JSA.

Despite this, bailiff firms frequently demand payments of £50 per week even when authorized to accept less. These problems are likely to increase if bailiffs are to be allowed to force entry to take control of goods. There is a further local authority dimension to this issue. Local authorities are under pressure to meet council tax collection targets and are therefore keen to get arrears paid as quickly as possible, even though this approach very often conflicts with their attempts to combat social exclusion. The use of bailiffs by the local authority very often seems to be a knee-jerk response, even when it seems clear that this is not appropriate, e.g. because the debtor is vulnerable. Bureaux have also reported difficulties in getting local authorities to take cases back from the bailiffs, e.g. when a client has made an offer of repayment to the bailiffs but this has been refused.

Protected goods

Certain goods are protected and cannot be seized by the bailiffs. The statutory definition of protected goods is available as a download. However, many bureaux have reported problems with bailiffs either threatening to remove or actually removing protected goods.

Third party goods

The council tax regulations make it clear that bailiffs can only seize and remove goods belonging to the debtor. However, many bureaux have reported problems with bailiffs removing the goods of third parties, including those belonging to family members, flatmates, and landlords, as well as those subject to hire purchase and hire agreements.

Vulnerable situations

The National Standards for Enforcement Agents, published in 2002, contains guidance on how bailiffs should deal with vulnerable and socially excluded people. The guidance can be viewed here ( link to resource material). However, bureaux routinely report cases in which bailiff firms have failed to adhere to the guidance.

• We believe that the regulation of bailiffs is essential to protect the interests of vulnerable debtors and to ensure that all bailiffs are properly controlled and accountable.

• We also consider that the passing of the Human Rights Act has made the need for bailiff regulation even more important, given the way in which harassment, intimidation and unlawful entry can all be serious breaches of the Act.

We would therefore like to see a regulatory framework included in the Draft Tribunals, Courts and Enforcement Bill.

• We are also concerned that at present it is very difficult for debtors to complain or appeal against the activities of bailiffs, e.g. the National Standards for Enforcement Agents do not include complaints or appeals procedures and compliance against the standards is not monitored.

• We believe that there should be clear, transparent and accessible mechanisms available to debtors for making complaints against bailiffs, with effective remedies against bad practice including harassment and intimidation.

• We believe that these complaints and redress mechanisms should form part of this regulatory framework.

• We believe that regulation should be independent and impartial and would therefore like to see a statutory body such as the Office of Fair Trading responsible for regulating the activities of all bailiffs.

• We will be lobbying MPs on the need for bailiffs to be regulated and for a regulatory framework to be included in the Draft Tribunals, Courts and Enforcement Bill.

• We will be using the evidence gathered by bureaux to formally respond to the consultation on the Bill