This thread seeks to examine the provisions contained within the Tribunals Courts and Enforcement Act 2007 in regards to the protection of vulnerable debtors.

Thanks DB, we need to establish what and how it can be claimed, proved, and applied, plus examine the effect of any fees applied. As I understand it if vulnerability is proved at the Enforcement stage, then the Enforcement fee may be removed but the Compliance fee still stands, that is my starter for 10.

If a vulnerable debtor can show proof at the door on a visit, that would help further down the line if th EA chooses to ignore any evidence, say a DWP PIP award notice, medical letters, prescription lists etc,

Start with the relevant legislation.

Taking control of goods regualtions

http://www.legislation.gov.uk/uksi/2013/1894/regulation/10/made

Circumstances in which the enforcement agent may not take control of goods

10.—(1) The enforcement agent may not take control of goods of the debtor where—

(a)the debtor is a child;

(b)a child or vulnerable person (whether more than one or a combination of both) is the only person present in the relevant or specified premises in which the goods are located; or

©the goods are also premises in which a child or vulnerable person (whether more than one or a combination of both) is the only person present.

(2) Where an item which belongs to the debtor is in use by any person at the time at which the enforcement agent seeks to take control of it, the enforcement agent may not do so if such action is in all the circumstances likely to result in a breach of the peace.

(3) In paragraph (2), “in use” means that the item is in the hands of, or being operated by, the person.

Restrictions on entry and re-entry to, and remaining on, premises

23.—(1) This regulation applies where the enforcement agent is entering, re-entering or remaining on premises in the circumstances mentioned in regulation 21(1).

(2) The enforcement agent may enter, re-enter or remain on the premises only if—

(a)the debtor is not a child; or

(b)a child or vulnerable person (whether more than one or a combination of both) is not the only person present in the premises which the enforcement agent proposes to enter or re-enter.

And a brief description in the Explanatory notes which says :

Particular protection is given to children and vulnerable persons (see regulation 10) so that an enforcement agent may not take control of goods where either the debtor is a child, or a child or vulnerable person (or more than one such person) is or are alone on the premises.

So if the "Child" is 14 The EA might stay and claim they thought as the child looked older than 14, as has happened in the past.

The big fly in the ointment of :

Restrictions on entry and re-entry to, and remaining on, premises

23.—(1) This regulation applies where the enforcement agent is entering, re-entering or remaining on premises in the circumstances mentioned in regulation 21(1).

(2) The enforcement agent may enter, re-enter or remain on the premises only if—

(a)the debtor is not a child; or

(b)a child or vulnerable person (whether more than one or a combination of both) is not the only person present in the premises which the enforcement agent proposes to enter or re-enter.

is if the vulnerable person is a dementia sufferer who appeared lucid enough tor a controlled goods agreement, then forgot all about it, and the bailiff returned to remove goods, no proof of vulnerability being given, as the VP (vulnerable Person) didn't understand and asked no one for help or told anyone.

This would apply to the original Taking Control of goods also. As the EA is the assessor of vulnerabilty, there is scope for some problems .

Guidance is given in the National standards for enforcement agents of April 2014.

14. Creditors must consider the appropriateness of referring debtors in potentially

vulnerable situations to enforcement agents and, if they choose to proceed, must

alert the enforcement agent to this situation.

15. Creditors should ensure that there are clear protocols agreed with their

enforcement agents governing the approach that should be taken when a debtor

has been identified as vulnerable.

16. Should a debtor be identified as vulnerable, creditors should be prepared to take

control of the case, at any time, if necessary.

30. Where enforcement agents have identified vulnerable debtors or situations, they

should alert the creditor and ensure they act in accordance with all relevant

legislation.

42. Enforcement agents should be trained to recognise vulnerable debtors, to alert

creditors where they have identified such debtors and when to withdraw from

such a situation.

Vulnerable situations

70. Enforcement agents/agencies and creditors must recognise that they each have

a role in ensuring that the vulnerable and socially excluded are protected and that

the recovery process includes procedures agreed between the agent/agency and

creditor about how such situations should be dealt with. The appropriate use of

discretion is essential in every case and no amount of guidance could cover

every situation. Therefore the agent has a duty to contact the creditor and report

the circumstances in situations where there is evidence of a potential cause for

concern.

71. If necessary, the enforcement agent will advise the creditor if further action is

appropriate. The exercise of appropriate discretion is needed, not only to protect

the debtor, but also the enforcement agent who should avoid taking action which

could lead to accusations of inappropriate behaviour.

72. Enforcement agents must withdraw from domestic premises if the only person

present is, or appears to be, under the age of 16 or is deemed to be vulnerable

by the enforcement agent; they can ask when the debtor will be home - if

appropriate.

73. Enforcement agents must withdraw without making enquiries if the only persons

present are children who appear to be under the age of 12.

74. A debtor may be considered vulnerable if, for reasons of age, health or disability

they are unable to safeguard their personal welfare or the personal welfare of

other members of the household.

75. The enforcement agent must be sure that the debtor or the person to whom they

are entering into a controlled goods agreement understands the agreement and

the consequences if the agreement is not complied with.

76. Enforcement agents should be aware that vulnerability may not be immediately

obvious.

77. Some groups who might be vulnerable are listed below. However, this list is not

exhaustive. Care should be taken to assess each situation on a case by case

basis.

. 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.

78. Wherever possible, enforcement agents should have arrangements in place for

rapidly accessing interpretation services (including British Sign Language), when

these are needed, and provide on request information in large print or in Braille

for debtors with impaired sight.

I think I've pretty much got my head round this now, but for the benefit of the thread - you've not been identified as vulnerable when the EA visits, he has left and you are screaming, 'But I'm vulnerable!'

What should you do?

Yes I thought I would get the guidance and legislation up front but a brassnecked says it is all about how it works in practice which is important.

Hopefully we will have input from the Enforcement agents present on here who will clarify, together with any real life experiences and of course some other knowledgeable posters.

Yes I thought I would get the guidance and legislation up front but a brassnecked says it is all about how it works in practice which is important.

 

Hopefully we will have input from the Enforcement agents present on here who will clarify, together with any real life experiences and of course some other knowledgeable posters.

We have to consider also that the debtor may not either know they may be considered vulnerable, or the EA may ignore signs of vulnerability, say as in my example of a seemingly lucid dementia sufferer, with short term memory loss, who forgets about the EA and tells no one. To be fair to the EA, this is not as uncommon as people might think.

I'm sure Grumpy and HCEOs will have some valuable input to give, about what they experience out in the field.

In the past few years it is a legal requirement that all statutory instruments must include an Explanatory Memorandum which outlines the purpose of the regulation in simple easy to read terms.

The Explanatory Memorandum to the Taking Control of Goods (Fees) Regulations 2014 can be accessed from the following link and paragraphs 3.4 and 3.5 are highly relevant.

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

The National Standards provide examples of debtors who may be considered vulnerable. It is important to stress that each category has to be considered carefully. Another matter that needs to be considered is that with council tax debts it is usually the case that matters progress to warrant stage because the debtor has limited funds. This is actually not the case with most road traffic debts with many going to warrant stage as a result of 'head in the sand' syndrome. This is one of the main reasons why the word 'may' is included in the National Standards.

Pregnant:

A debtor with an unpaid TfL congestion charge could be pregnant but could also be working in the City and employing a nanny (I have come across many such examples over the years).

An elderly person

A elderly person with a unpaid PCN to Royal Borough of Kensington & Chelsea may be enjoying the financial benefits of a healthy pension fund and may own a very expensive vehicle (this was the case of a real enquiry yesterday and the debtor owned a very nice mercedes that was free of finance). Because he is 'elderly' should be be considered 'vulnerable' and should enforcement cease? No.

Single parent families

A single mother may have a parking ticket but may also be self employed and working from home and receiving an income. Should she be considered 'vulnerable? No

Unemployed people.

This is a difficult category indeed. For example, a wife may have an unpaid parking ticket but her husband is working and so too is her son and daughter and all are contributing to the household. The husband's salary goes into a joint bank account. Should the wife therefore be 'exempt' given the she (as the debtor) is not working? No.

We then come down to the important categories:

Seriously ill

Recently bereaved

People with a disability.

Working right now so unable to add my pennies worth. Randomly sat outside someone's house awaiting proof of late stage pregnancy. If the paperwork materializes, then the cat gets unclamped and it will be returned as vulnerable as she claims to be less than 2 days away from dropping.

Will endeavour to visit layer on this evening.

Working right now so unable to add my pennies worth. Randomly sat outside someone's house awaiting proof of late stage pregnancy. If the paperwork materializes, then the cat gets unclamped and it will be returned as vulnerable as she claims to be less than 2 days away from dropping.

Will endeavour to visit layer on this evening.

Oh grumpy!!!

You shouldn't need to see evidence as the debtor should be HUGE !!!

PS: I am assuming it is the car that will be getting unclamped and not the CAT !!!

I think the regulations and guidance are careful to say that the criteria listed might be those where vulnerability is present, in other words extra care must be given by the EA( and perhaps extra credence to a claim of vulnerability by the debtor?).

It is a problem and one of those which may have to be resolved by case law in the future. It seems not to be the case that debtors should be believed when a claim is made and tor the EA have to prove otherwise, but rather that unless "proof positive" is presented the EA may carry on with the enforcment action.

The section pointed out by BA i which states that goods may be seized but a period must be given where the debtor can get advice, seems to refer to the debtor getting advice on how to best settle the debt, not advice on how to prove vulnerability. At the end of the day there is still a debt to be paid or at lest addressed.

also

I think there is a distinction between the debtor whose incapacity does not enable him to fully understand the action being taken and those who physicality or psychologically cannot interact with enforcment officers without it further worsening their condition.

Working right now so unable to add my pennies worth. Randomly sat outside someone's house awaiting proof of late stage pregnancy. If the paperwork materializes, then the cat gets unclamped and it will be returned as vulnerable as she claims to be less than 2 days away from dropping.

Will endeavour to visit layer on this evening.

I hope it is not required to get her to hospital for the happy event grumpy

Oh grumpy!!!

 

You shouldn't need to see evidence as the debtor should be HUGE !!!

 

PS: I am assuming it is the car that will be getting unclamped and not the CAT !!!

So I am to assume all large women are pregnant? How often have you seen someone and wondered if they are pregnant or just large? Its not that easy a decision to make sometimes.

No, its the cat that is clamped. Meowing softly to me isn't helping its cause either as I dont like cats.

I hope it is not required to get her to hospital for the happy event grumpy

I was ignored completely. Knocked and knocked. Neighbour stars she is in as car on drive and didn't say anything about pregnant.

I clamped as she ignored. She then came to the door and claimed to be pregnant. Sp awaiting proof as its not as clear as you would believe it should be.

I was ignored completely. Knocked and knocked. Neighbour stars she is in as car on drive and didn't say anything about pregnant.

 

I clamped as she ignored. She then came to the door and claimed to be pregnant. Sp awaiting proof as its not as clear as you would believe it should be.

Obviously still articulate and mobile though Grumpy, would proof of pregnancy still make it impossible for you to take control of the goods nevertheless ?

 

 

No, its the cat that is clamped. Meowing softly to me isn't helping its cause either as I dont like cats.

Now you are really being horrible!! My two cats are better company than any human beings.

Haha, just don't tell my cat what I said.

Not impossible dodge, we have been assured that it is down to the way it is worded and should the debtor be able to understand and comprehend what's going on then the goods can be taken control of on paper, but then left with the debtor to allow them extra time to seek help.

This is an area that is grey and wont become clearer until case law is made. Its actually extremely rare though that we come across genuine vulnerability claims. That said, I generally only do HC work so its more businesses etc.

The summary of the fee implications of a debtor being vulnerable in the second post in this thread is not correct. The only fee implication of a debtor being vulnerable is contained in the Taking Control of Goods (Fees) Regulation 12 and it is this:

"12. Where the debtor is a vulnerable person, the fee or fees due for the enforcement stage (or, where regulation 6 applies, the first, or first and second, enforcement stages as appropriate) and any disbursements related to that stage (or stages) are not recoverable unless the enforcement agent has, before proceeding to remove goods which have been taken into control, given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power."

So you can see there is never a requirement to give up the enforcement fee, only the stipulation that it may not be recovered if the enforcement agent removes the debtors goods before the debtor has been given an opportunity to get assistance and advice.

In practical terms the debtor being vulnerable does not make it illegal for a creditor to subject them to the Schedule 12 process though they must take their circumstances into account and the enforcement agent must not instantly remove goods from a vulnerable debtor who has not had a chance to get assistance and advice or at least if they do they may not recover the enforcement fee and disbursements.

The enforcement agent's responsibilities are therefore to:

1. Give a vulnerable debtor an opportunity to get assistance and advice and

2. Take the debtor's vulnerability into account in dealing with them and

3. Report the possible vulnerability to the creditor

Ultimately it is up to the creditor to decide what they want the enforcement agent to do and that can include still taking control of and removing and selling goods provided the debtor has had an opportunity to get assistance and advice. I do worry therefore when advice is given that all you have to do is prove you are vulnerable and the council creditor will take the case back and the problem will go away. They might do that but it is not a certainty.

There seems to be a belief in many circles that any degree of sad circumstances renders a debtor permanently immune from the Schedule 12 process but that is not so. Even training given by MIND emphasises that vulnerability of the sort envisaged by the legislation and guidance can vary from time to time. If someone's beloved spouse died an hour before an enforcement agent arrives they may well be in floods of tears and be incapable of engaging with the debt situation and the enforcement agent should walk away. However at some point in the future most people will move on and be able to deal with the situation, perhaps after seeking assistance and advice.

BailiffAdvice has pointed above to the intent of the regulations as described in the explanatory memorandum to fee regulations and the most relevant part is shown below.

This instrument provides vulnerable debtors with the opportunity to seek further advice,

in line with responses to the “Transforming Bailiff Action” consultation, before incurring

the enforcement fee. Responses suggested that a vulnerable debtor may be incapable of

understanding or engaging with the process in the early stages and so should be given the

chance to seek advice when the enforcement agent is on their doorstep and has identified

them as vulnerable. While the enforcement agent will not be prevented from taking

control of goods (thereby fulfilling obligations to the creditor), failure to provide a debtor

with this opportunity before they proceed to actually remove the goods will mean they

risk their enforcement stage fee. This will provide an incentive for the enforcement agent

to ensure a vulnerable debtor is able to get advice; will allow the debtor to address their

debt and protect the creditor’s right to recover what is owed to them.

I hope you see my point. Vulnerability isn't simply a list of sad circumstances, it is seen as an inability to deal with the situation at a particular point in time and the "cure" is giving the opportunity to the debtor to get someone to help them deal with it. It's a bit like protecting bewildered old people from unscrupulous builders who try to persuade them to pay a fortune for a bit of roof work by saying the contract for the work cannot start until the old person has had an opportunity to get someone on their side to tell the builder to go away or to negotiate a reasonable price for the job if one needs to be done.

Exactly, the bit that says you cant take control, I believe applies to to the actual REMOVAL of the goods.

Exactly, the bit that says you cant take control, I believe applies to to the actual REMOVAL of the goods.

This is where it gets difficult grumpy. Because where as i agree in principle with what you say.

I am sure that the act did not intend the EA to enter a premises and seize goods when there was only a child present for instance.

edit in fact section 23 says they cannot

Yes, I cannot take control if the debtor is a child or if a child is the only person present.

We are talking about the debtor being present and being vulnerable.

Oh yes sorry I did not deal with regulation 10 and 23. They are dealing with the particular moment an enforcement agent wants to take control of goods or enter premises and do have to be observed. They do not mean the council have to have the case back though if the debtor is permanently unable to deal with their affairs, lives on their own and never has a non-vulnerable person present then the goods would not be able to be taken into control except outside on the highway for instance. Hopefully though in such rare and hopeless circumstances both the enforcement agent and the creditor would agree that it was not a case for the Schedule 12 procedure.

The debtor is rarely a child and vulnerable person mentioned does not have to be the debtor. Perhaps there will be a job for bewildered old people like me to house sit for debtors to keep the enforcement agents at bay whilst the debtor hops out the back door.