Vulnerable people continue to suffer at the hands of bailiffs flouting the law. The system urgently needs reform
Bailiffs have been around for over a thousand years of legal history. While the official term to describe them is now ‘enforcement agent’, their role of enforcing court judgments by seizing possessions has remained much the same. A recent report, Taking control: the need for fundamental bailiff reform
(March 2017), challenges the government to modernise the laws governing this ancient office.
Research by StepChange Debt Charity found that the reforms introduced by the government in April 2014 have been widely flouted by many bailiffs. The Taking Control of Goods National Standards were supposed to prevent bailiffs calling outside the hours 6 am to 9 pm. The research (which focused on clients with council tax arrears) found that in 12 per cent of cases they were visiting outside these ‘reasonable hours’. In 17 per cent of cases they were persisting with action despite agreeing a repayment plan and in three per cent of cases they were entering a home when only children were in – both also breaches of the standards.
The seven debt advice organisations behind the call for further reforms of the legislation governing bailiffs have contributed powerful case studies to support their arguments. For example, one client who sought help from the charity Z2K was pressurised into a repayment plan that was, according to her advisers, ‘obviously unsustainable for someone in her financial situation’. The experience of bailiffs calling also led to a deterioration in the mental health condition from which she suffered. In another case, reported by Citizens Advice, bailiffs tried to enforce payment of an outstanding debt of £60 plus £310 in fees despite not properly serving documents.
A problem identified in the report is the fee structure for bailiffs. The rules, introduced in 2014, allow for a fee of £75 to be charged at the first stage of action to recover a debt. For county court bailiffs, a fee of £235 can then be levied for enforcement (and then a further fee of 7.5 per cent of the debt can be added to amounts outstanding over £1,500). Further charges are made for removing and selling goods. The organisations lobbying for the change in the law believe that the fee structure ‘inherently incentivises bailiffs to escalate to enforcement action’. StepChange also found in its research that the charges made by bailiffs can significantly increase debts. For example, a small debt for council tax arrears can have £420 or more added to it in the space of a few months.
Reforms to bailiffs’ charges suggested by the report include a common fee structure for the different types of enforcement officer and statutory requirements that need to be covered before a bailiff can move on to the next step of the process. A recommendation for bailiffs to use a ‘consistent framework for agreeing affordable repayments’ is also suggested.
The report argues that while proceedings to recover debts through bailiffs are relatively quick to initiate, in many circumstances suspending the action is incredibly difficult. This is despite the many incidences in which there are good grounds to dispute debts or mistakes that have been made by creditors. In the county court, an application to suspend or vary an order can be made on form N245, but there is no comparable procedure in the magistrates’ court to stop bailiffs after a warrant of control has been issued. For other types of bailiff action there is no procedure at all for suspension.
A unified regulatory regime and a simplified, cost-free mechanism for complaints against all bailiffs are recommended by the authors of the report. Legal Action suggests that this would at least bring bailiffs into the last century in terms of regulation and consumer redress. However, we cannot help but reflect that the government might have a vested interest in not extending consumer rights to the control of bailiffs.
The use of bailiffs to recover debts is growing and a large part of this increase is being driven by government. HMRC and the Department for Work and Pensions are both large users of bailiffs, but local authorities, as a group, utilise them even more. The Money Advice Trust reported a 16 per cent increase from 2013 to 2014/15
in the use of bailiffs by local authorities to recover council tax arrears. According to the Taking control
report, last year Citizens Advice assisted 82,000 people with problems relating to bailiff action. Out of these, 57,000 issues related to the enforcement of council tax arrears. In total, 2.1m debts were passed to bailiffs by local authorities in 2014/15. Legal Action
suspects that cuts to benefits – especially the scrapping of the national council tax scheme, which has led to most claimants having to make a contribution to council tax – are a significant driver in the increased use of bailiffs by councils.
Bailiffs have represented the sharp end of the legal system since its earliest days and the reality is there will always be the need for mechanisms to force some people to comply with judgments. However, the Taking control report is right to argue that there needs to be greater accountability and more effective regulation of these law enforcers. Legal Action believes that as well as acting on this, the government needs to change policies that lead to other arms of the state engaging bailiffs to enforce judgments that are more a symptom of poor policy than a failing of those in debt.