Vulnerability, Bailiff Enforcement and the TCE 2007

[Peterbard]

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.

 

Yes section 23 applies to any proven or obviously vulnerable person I suppose(like a young child)

 

I can envisage a situation where the debtor sends their young child to the door to tell the EA that "mum and dad are not home". Interesting also, this would also stop an agent with a warrant form the court forcing entry.

[GrumpyToSayTheLeast]

Yes sectin 22 applies to any proven or obviously vulnerable person I suppose(like a young child)

 

I can envisage a situation where the debtor sends their young child to the door to tell the EA that "mum and dad are not home". Interesting also, this would also stop an agent with a warrant form the court forcing entry.

 

I have witnessed this first hand and watched an EA be told by a 6 year old that he is home alone. Normally a case to withdraw from and visit another day. However, a neighbour confirmed the debtor was in having only just seen her enter. A quick 2 min phone call to the magistrates and a locksmith is called. The EA was correct at the end having found the debtor hiding upstairs. Obviously the police were present also.

[GrumpyToSayTheLeast]

Magi fine, not hc or parking work though.

[Peterbard]

I have witnessed this first hand and watched an EA be told by a 6 year old that he is home alone. Normally a case to withdraw from and visit another day. However, a neighbour confirmed the debtor was in having only just seen her enter. A quick 2 min phone call to the magistrates and a locksmith is called. The EA was correct at the end having found the debtor hiding upstairs. Obviously the police were present also.

 

Yes not surprised, would have been a bit stick y had the lad been telling the truth though, although the police may have been interested in why a minor of that age was left at home on his own.

[GrumpyToSayTheLeast]

Police were there for that reason as they wouldn't normally be asked to attend a forced entry unless the debtor/occupant asks for them.

[mikeymack2002]

Spanner in the works time on vulnerability, you may want to read up on PACE as well they too have a policy in place, but the standards are different.

 

 

Definition of vulnerable adult

 

2.—(1) In these Regulations “vulnerable adult” means a person aged 18 or over who is receiving services of a type listed in paragraph (2) below and in consequence of a condition of a type listed in paragraph (3) below has a disability of a type listed in paragraph (4) below.

(2) The services are—

(a)accommodation and nursing or personal care in a care home;

(b)personal care or nursing or support to live independently in his own home;

©any services provided by an independent hospital, independent clinic, independent medical agency or National Health Service body;

(d)social care services; or

(e)any services provided in an establishment catering for a person with learning difficulties.

(3) The conditions are—

(a)a learning or physical disability;

(b)a physical or mental illness, chronic or otherwise, including an addiction to alcohol or drugs; or

©a reduction in physical or mental capacity.

(4) The disabilities are—

(a)a dependency upon others in the performance of, or a requirement for assistance in the performance of, basic physical functions;

(b)severe impairment in the ability to communicate with others; or

©impairment in a person’s ability to protect himself from assault, abuse or neglect.

(5) In this regulation “care home”, “independent clinic”, “independent hospital”, “independent medical agency” and “National Health Service body” have the same meanings as in the Care Standards Act 2000(1).

 

 

data from here http://www.legislation.gov.uk/uksi/2002/446/regulation/2/made

[Peterbard]

Thanks for that mm helpful in that it gives definitions from other areas, these definitions would not apply to enforcment under the TCE of course. The ones quoted are relevant to regulations made under the police act.

[mikeymack2002]

The idea behind that post was to open up a chain of thought as several different descriptors' of a vulnerable adult are freely available some can even be found in the "care charter" and "no secrets" as well to name but a few.

 

 

Another thing to remember is those goons from TVL that use a pace caution it is useless against an adult that requires an "appropriate adult" to be present. You may also confer that this to can be used as a means to an end.

 

 

The biggest worry is that someone stated that the EA can decide on whom is vulnerable, the argument there would be what are their qualifications to make such an assessment in the first place?

 

 

With the above have a think and see what other ways a mind can assume what and whom is an vulnerable adult. I will watch the replies and add as and when I think it will help

[Peterbard]

I think the basic points which have come to light are.

 

That there are obvious situations where the debtor is vulnerable in regards to section 10 and 23 of the TCGA (child or severely handicapped for instance) and in the cases the EA should withdraw as he can neither enter the premises or take control of goods.

 

When vulnerability is claimed but not obvious (depending on the training of the EA) the goods can be taken into control but there must be a period where the debtor can get advice before they are removed. In these cases the EA should first confer with the creditor before any actin is taken.(not really happy with this TBH)

 

Just as a starting point, does this sound about right ?

[mikeymack2002]

In regards to enforcement under the TCE who has that right and have they actually published the list and if so post it up. The list that states what or whom is classed as VULNERABLE is GUIDANCE only.

 

 

The job of the EA in deciding whether or not a person is/not vulnerable is utter rubbish. I would argue that they do not have the EXPERTISE/QUALIFICATIONS or indeed the legal/lawful authority to over turn a fully qualified DR or same.

 

 

If the EA's do have this authority please get them to post it up if not the Human Rights legislation will be making a meal of their BUTTS

[Peterbard]

I think practically speaking, since the EA is the one who is interacting with the debtor and who is authorized by the court to enforce the warrant it is going to be him who will have to make a determination as to vulnerability, unless you are suggesting that each bailiff should have a social worker assigned to him.

[mikeymack2002]

Please read the reply again, slowly and carefully, nowhere in ANY regulation states that the EA can or must make that determination he is NOT QUALIFIED to make it PERIOD

[mikeymack2002]

The wording may say if the EA SUSPECTS there MAY be a vulnerability they MUST report this to the creditor and withdraw for further advice from the CREDITOR, then the same argument applies to the CREDITOR they too cannot make that DETEMINATION why? Simples they too are not QUALIFIED to make it either.

 

Sorry about the bolding here but these are valid arguments that are open to discussion

[Peterbard]

There is a provision within the guidelines which states that a creditor should be prepared to take a debt back form the EA if vulnerability is shown, so presumably fi the debtor contacts the creditor with sufficient proof the creditor is under a duty to act on it.

 

In fact failure to do so would be maladministration and trigger complaint to the LGO according to informed sources.

[GrumpyToSayTheLeast]

So what you are saying MM is that on any call where we turn up and the debtor says they are vulnerable, we should just walk away?

If you say you are pregnant, ill ask for proof.

If you claim to be suffering mental health issues, I will enquire as to what is wrong and will wish to see doctors note or medication bottles as proof.

If you are in a wheel chair I can see your disabled, but does that stop me taking 300 garden ornaments? You might be in a wheel chair but it doesn't make you vulnerable and to claim everyone in a wheel chair is vulnerable is shaky ground indeed. There are alot of people that have physical disabilities out there that would be VERY offended if you class them as vulnerable.

[GrumpyToSayTheLeast]

Ultimately if we see a vulnerable situation, we will act accordingly and speak with the creditor. If the debtor claims vulnerability we will investigate accordingly and go back to the creditor with the info gained.

[mikeymack2002]

What I am saying is the EA should retire and SEEK permission from the creditor. If you fail to do so it is your license and future on the line. Vulnerable adults ARE PROTECTED IN LAW....

 

 

Ok lets take this to the next level shall we lets name drop here Einstein, Stephen hawking both disabled BOTH vulnerable why?

[Peterbard]

So what you are saying MM is that on any call where we turn up and the debtor says they are vulnerable, we should just walk away?

If you say you are pregnant, ill ask for proof.

If you claim to be suffering mental health issues, I will enquire as to what is wrong and will wish to see doctors note or medication bottles as proof.

If you are in a wheel chair I can see your disabled, but does that stop me taking 300 garden ornaments? You might be in a wheel chair but it doesn't make you vulnerable and to claim everyone in a wheel chair is vulnerable is shaky ground indeed. There are alot of people that have physical disabilities out there that would be VERY offended if you class them as vulnerable.

 

You are correct grumpy the guidsnce actually says

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.

 

From this it is clear that it is for the EA to identify vulnerability(it is also common sense since he will be the only one resent to do so).

 

This is really not the issue.

[Peterbard]

What I am saying is the EA should retire and SEEK permission from the creditor. If you fail to do so it is your license and future on the line. Vulnerable adults ARE PROTECTED IN LAW....

 

 

Ok lets take this to the next level shall we lets name drop here Einstein, Stephen hawking both disabled BOTH vulnerable why?

 

Well Einstein is dead

[mikeymack2002]

Grumpy no disrespect offered or intended here but, you are a go between and MUST resport to the creditor if the debtor claims a vulnerability. You claimed above you will decide that is WRONG.

 

 

What you must do is retire and inform your creditor not make any demands as to proof from the debtor, you have zero rights to this information as a person or as an EA. This is confidential information between creditor and debtor. Your only role is to enforce, enquire or retire, you have no rights whatsoever to demand ANY confidential information relating to a debtors medical history or anything information relating to it. (Dr/patient privilege applies here). End of

[Peterbard]

Grumpy no disrespect offered or intended here but, you are a go between and MUST resport to the creditor if the debtor claims a vulnerability. You claimed above you will decide that is WRONG.

 

 

What you must do is retire and inform your creditor not make any demands as to proof from the debtor, you have zero rights to this information as a person or as an EA. This is confidential information between creditor and debtor. Your only role is to enforce, enquire or retire, you have no rights whatsoever to demand ANY confidential information relating to a debtors medical history or anything information relating to it. (Dr/patient privilege applies here). End of

 

With respect this is absolute nonsense. If this were true all the debtor would have to do is say is "go away i am vulnerable" and the bailiff would have to retire, no action would ever take place.

[mikeymack2002]

A note to posters I am NOT trying to flame this thread but just opening and closing doors for discussions' that is all. The EA has to abide by the rules and not to navigate around them to suit their needs.

 

 

I can see nowhere in the regulations that clearly state a debtor MUST provide any proof to the EA as to their vulnerabilities, the only legislation written is that the EA must retire and inform the creditor so it is written correct?

[mikeymack2002]

DB please expand on your post at #46 so everyone is very clear to your point. Please re-read the new regs and you will clearly see what is written on this subject. The matter then goes back to the creditor and then they may decide what action to take next once all the relevant information has been provided by the debtor to confirm the statement they made about being vulnerable!

 

 

Until such a time as the statement can be confirmed or denied then enforcement must be put on hold.

[Peterbard]

I think the point is that the contract point is going to be the EA in most cases, unless you are suggesting that the EA considers everyone as vulnerable unless proven otherwise, it will be upto the debtor to advise the bailiff.

 

It is then upto the bailiff to accept this and act accordingly or not, the debtor may not agree, and it is within their rights to complain to both to the EA and the creditor if he thinks the bailiff has it wrong. But that is as far as it goes.

[Peterbard]

DB please expand on your post at #46 so everyone is very clear to your point. Please re-read the new regs and you will clearly see what is written on this subject. The matter then goes back to the creditor and then they may decide what action to take next once all the relevant information has been provided by the debtor to confirm the statement they made about being vulnerable!

 

 

Until such a time as the statement can be confirmed or denied then enforcement must be put on hold.

 

Please copy it here and we will discuss it, I am unsure which section you are referring to.