In April 2014, significant changes were made to the way in which bailiffs can enforce debts. Most importantly, the fees that can be charged are fixed and transparent. The following page is an overview of the new regulations.

Terminology

The Taking Control of Goods Regulations 2013 modernise terminology. The terms levy, distress or distrain are now known as the process of ‘taking control of goods’. A walking possession agreement is now called a Controlled Goods Agreement and bailiffs are now known as enforcement agents (although they can still be referred to as bailiffs).

Warrants of execution (in particular for road traffic debts) and warrants of distress (for Magistrate Court fines) have been renamed warrants of control. With debts enforced via the High Court, the centuries old term of a writ of fieri facias (writ of fi fa) has been renamed a writ of control.

Enforcement Agent Fees

The Taking Control of Goods (Fees) Regulations 2014 also came into effect in April 2014 and with the exception of ‘writs of control’ (enforced via the High Court), the following fees apply to all debt types (council tax and non domestic rate arrears, local authority issued penalty charge notices, magistrate court fines, child support agency arrears and rent arrears).

Upon receipt of an instruction from the client, the enforcement company must send a Notice of Enforcement to the debtor. The notice must provide the date of the notice and the date and time by which full payment or a payment arrangement must be set up. This strict period of time is referred to as the ‘compliance stage' and must by law provide a minimum period of seven ‘clear days’ before an enforcement agent may visit the property. The compliance fee of £75 is payable for each Liability Order or Warrant of Control.

If full payment or a payment arrangement is not made during the Compliance Stage (or a previous payment arrangement is broken), the case will progress to the ‘enforcement stage’ and an individual enforcement agent/bailiff will attend the property for the purpose of ‘taking control' of goods. This fee becomes payable at the time of attendance.

If the enforcement agent is enforcing more than one Liability Order or Warrant of Control against the same person, he may only charge one enforcement fee (of £235). He cannot apply ‘multiple’ charges.

This fee shall be charged when an Enforcement Agent attends the premises to remove goods and makes preparations for the sale of goods. It is important to note that additional charges may also be applied relating to the removal. These include storage and locksmith’s fees.

Forms and Documentation

The new regulations provide a series of statutory forms that must be used by the enforcement agent. Full details of all forms and the information that must be provided on them can be viewed here.

Making a payment proposal

The legislation provides a strict period in which to make payment or to negotiate a payment arrangement without the need for a bailiff attendance. This is referred to as the ‘Compliance Stage’ and begins with receipt of the Notice of Enforcement. If full payment cannot be made within the strict time period outlined in the notice, (a minimum of seven ‘clear days’) then it is vitally important to contact the enforcement company to make a payment arrangement. Most companies will readily agree to accept an arrangement over a period of 3 months (and possibly even 6 months) depending on the individual circumstances.

Providing the enforcement company with a simple Income and Expenditure calculation at this stage may be of assistance.

Failure to make payment (or to agree a payment arrangement) during the compliance stage will lead to a bailiff making a personal visit to ‘take control’ of goods. This visit will incur an enforcement fee of £235 as outlined above.

Vulnerable debtors

Far better protection is given to vulnerable debtors under the regulations. One example being that a vehicle displaying a disabled badge is now exempt from being taken by a bailiff.

Secondly, and most importantly, Regulation 12 of the Taking Control of Goods (Fees) Regulations 2014 makes provision to protect vulnerable debtors who may have been unable in the early stages to seek advice (from the local authority, magistrates court, debt counsellor/debt charity etc) about the debt. If a bailiff makes a personal visit (which incurs an enforcement fee of £235) and identifies a debtor as ‘vulnerable’, then Regulation 12 provides that he should give the person a chance to seek advice prior to removal of goods. If he fails to do so, the enforcement fee of £235 is not recoverable.

An enforcement agent will not know in advance whether a person is ‘vulnerable’. It is therefore vitally important to make the enforcement company aware of any ‘vulnerability’ at the earliest possible stage (during the compliance stage) and where possible, to provide some form of documentary evidence.

Times of day when a Bailiff/ Enforcement Agent may visit

The enforcement agent/bailiff is allowed to visit the property seven days a week (including Sunday) between 6.00 a.m. and 9.00 p.m. He is not allowed to visit on Bank Holidays and Christmas Day

Items that are exempt from being taken by a bailiff

As outlined above, if full payment or a payment arrangement is not set up during the ‘compliance stage’, the account will progress to the ‘enforcement stage’ and a personal visit will be made to ‘take control’ of goods (hence the name of the regulations). In reality, the enforcement agent will be seeking full payment of the debt. If this is not possible, then he may ‘take control’ of none exempt goods. The regulations provide a list of exempt items that cannot be taken into control by the bailiff. The following are the most important:

A full list of items that are exempt from being taken into control by a bailiff can be viewed here.

NOTE:

Motor vehicles are the most common item to be taken by bailiffs. A separate post is provided below on this subject.

Can a Bailiff take my car?

A motor vehicle has always been a most attractive item for a bailiff/enforcement agent to seize and in particular; because of its value and the fact that in many cases, the vehicle in located on the debtors driveway thereby easing the removal process.

In 2014 significant changes were made to bailiff enforcement under the Taking Control of Goods Regulations 2013 but unfortunately with motor vehicles, the regulations may result in reduced protection for many people and in particular, business debtors.

What do the regulations say about a vehicle being exempt?

Regulation 4(1)(a) of The Taking Control of Goods Regulations 2013 provide that the following 'goods of the debtor' are considered to be 'exempt':

What is meant by ‘necessary’ (for use personally by the debtor)?

The starting point will be whether the debtor’s trade (or employment) could continue without the particular vehicle that has been taken into control. In other words; is the future of the business (or employment) vital to that particular vehicle or could the business (or employment) continue to trade with a cheaper model? No two cases are alike.

What is meant by ‘for use personally’ (by the debtor)?

For example, if at any time during the course of business, an employee, or anyone else can be shown to have the use of the vehicle then the vehicle will not be ‘exempt’ from being taken. In most cases it is common to hear of bailiff companies requesting a copy of the insurance policy. The reason for this is usually to see whether any ‘additional’ drivers are included under the policy.

How is the value of £1,350 calculated?

The financial ‘cap’ of £1,350 is considered very low indeed and whilst this low figure may provide a level of security for students (ie, for ‘study and education’) the same cannot be said for sole traders and companies whose vehicles are likely to be worth much more than £1,350.

It is generally considered that the amount of £1,350 is likely to be calculated as being ‘auction’ value which should not be confused with ‘second hand value’. However, this point has not been made clear in the regulations.

I need my car to get to work. Is it ‘exempt’?

Most unlikely. The wording of the regulations provide that a vehicle under the value of £1,350 will be considered exempt if it is used by the debtor 'in the course of his employment'. This does not mean that a vehicle used for the purpose of getting to and from work will be considered exempt.

Can I sell or transfer my car to avoid it being taken by a bailiff?

If the vehicle is sold or transferred around the time of the Notice of Enforcement, then the vehicle is likely to be the subject of legal challenge given that goods belonging to the debtor become 'bound' under the warrant. The new purchaser would be required to make an application under Part 85 of the Civil Procedure Rules and provide evidence that the sale had been in 'good faith' and for 'valuable consideration' (i.e: had paid the proper market price for the car).

My car should not have been taken by a bailiff. What can I do?

A significant change that has been made to the regulations is the right to ‘appeal’ (object) if goods ( in particular motor vehicles) have been taken by the bailiff which are considered by the debtor to be ‘exempt’. This simple, speedy and most importantly, free procedure is outlined under Section 85 of the Civil Procedure Rules. Legal action should be avoided.

NOTE:

If viewers are concerned that a vehicle may be at risk of being taken or has already been taken by a bailiff, then please ask a question on the forum. We are all here to provide help and assistance.

A Simple Guide to the Taking Control of Goods Regulations.pdf

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