Vulnerability, Bailiff Enforcement and the TCE 2007

[mikeymack2002]

DB can you actually see what and why I am asking these questions and having the most important ones swept aside by an EA?

 

 

Yes I may ask many questions and am satisfied with some of the answers but I have asked a very important question that has yet to be answered by grumpy where and what legislation allows an EA to decide whether or not an EA has that if any authority to make that judgement call?

[Peterbard]

Your making the assumption that a leg is missing from an amputation. Might not it be missing since birth?

 

My point being is that a person with a missing leg MAY be vulnerable. But he/she may also NOT be vulnerable.

 

MM your repetitive questions have been answered in previous posts.

 

Yes and in this case it would not be the missing limb, or the physical disability which would be the cause of vulnerability but the psychological trauma associated with it, and of course this may or may not be present dependent on the individual case.

[Peterbard]

DB can you actually see what and why I am asking these questions and having the most important ones swept aside by an EA?

 

 

Yes I may ask many questions and am satisfied with some of the answers but I have asked a very important question that has yet to be answered by grumpy where and what legislation allows an EA to decide whether or not an EA has that if any authority to make that judgement call?

 

I would not dream of putting words int grumpy's mouth(daren't), but the answer is that the EA is the one who deals with the debtor, so he is the only one who can make the judgment, he cannot refer everyone who claims vulnerability back to the creditor, no enforcment action would ever take palace because everyone would just claim to be vulnerable.

[mikeymack2002]

post #151 is an excellent response thank you for that, slowly but surely the questions are getting answered.

 

 

Take the situation that a person has the need for a carer as is the case with those that claim DLA, whether low middle or even high rate. This also includes the mobility side of the claim too

 

 

For statistical purposes please see here https://www.gov.uk/government/news/statistical-update-disability-living-allowance-claims

 

 

From the reply to post #147 this again appears that the EA is still trying to remove any and all protection to anyone that may/not be vulnerable. Again the requested information about what rights the EA have to make this determination has not been forthcoming which to me shows what they are trying to say and do and that is to remove any an all protection

[mikeymack2002]

Grumpy has admitted that in certain situations he is prepared to believe the debtor, that is great news, but what is of concern is my point of what right they have in making that determination. They are not qualified in this field, observations do not count in this matter.

 

 

He may/not inform his office or even the creditor, but from what he is/has said it is up to him to decide, all I am asking is for proof he can legally decide whether or not someone is/not vulnerable, surely someone other than me wants to know this answer?

[mikeymack2002]

Since grumpy is unwilling or unable to provide proof the EA can deem if someone is vulnerable and then be allowed to decide that situation can be changed by the EA I have emailed the MoJ for their response and will duly provide that response from the MoJ when it arrives

[Peterbard]

MM

 

The answer is in post 153, it is one of practicality.

[mikeymack2002]

DB I saw that and have yet to see proof that the EA has any authority to make any change's to a persons vulnerability that's all

[mikeymack2002]

DB what you need to realise every case is different and as such be treated that way.

 

 

Just because the EA gets lied to everyday they still need to deal with each debtor on a new basis if they cant or don't then this makes the discussion hard.

 

 

People may not like the questions I ask but I do try to ask ones that are relevant then get told please provide proof, then when they make a statement you have to accept it, sorry this is not the case either provide the law where it states you can change a vulnerability or I will ask seek else where

[Peterbard]

DB I saw that and have yet to see proof that the EA has any authority to make any change's to a persons vulnerability that's all

 

He doesn't MM but he has the right to asses if the debtor is vulnerable or not, if he is unsure he is supposed to report back to the creditor, but if he think the debtor is trying to pull the wool over his eyes he is entitled to use his judgement.

 

If the debtor feels the EA has made a mistake they can complain to the EA and to the authority, the guidance says that both the authority and the EA should have procedures in place for identifying and dealing with vulnerable debtors if he is still dissatisfied he can make complaint to the LGO.

 

.

[mikeymack2002]

I have just emailed the MoJ on this very subject for clarification, the reason behind this is to find out what legal authority the EA has to deem whether or not a person is classed as vulnerable and whether or not he EA has the LEGAL right to over turn any decision made by the DWP a Dr or even a Consultant and deem the person NOT to be vulnerable, I think I have asked this now 3 times and no responsible reply from him has been made.

 

 

DB debtors lie, yes EA's lie some people lie. That is not the job of the EA to decide on that, that belongs to the creditor alone, then the debtor can pursue a formal complaint if the actions of the EA make the condition worse by them trying to change what the debtor has stated to be truthful.

 

 

As far as complaining to the office of the EA we all know what will happen with that, there are enough threads on that to last a lifetime.

 

 

In all honestly DB please enlighten me/us with the legislation that allows an EA to deem whether or not an EA has the authority to make that assumption?

 

 

Please also provide the legislation that allows the EA to LAWFULLY access a debtor to be vulnerable or not, failing that please provide the same as for providing the EA the medication and/or medical record to prove if they are disabled/vulnerable or not, then for the cherry on the top of the cake the legislation that allows an EA access to the medical records/condition of a debtor.

 

 

These are just basic questions I would ask of anyone coming to my front door claiming they have a right to decide whether or not I was vulnerable. As far as disclosing to an un-authorised 3rd party my medications that will NEVER happen

 

 

Again DB you have said they have the right please once again provide this proof

 

 

A note to admin these questions being asked are very relevant and should be answered to clarify the LEGAL position that allows the above to be even contemplated to be used by an EA at the door of a vulnerable person

[fletch70]

Just a thought

Is the EA deciding who is vulnerable and who is not just as relevant as a DWP decision maker deciding who is ill enough to get certain benefits.

 

Not everyone with a physical disability is necessarily so traumatised by it that they can not deal with bailiffs just as someone who is physically able may have a hidden disability that would not appear obvious. It does concern me that the EA is allowed to make that decision as it leaves the who operation open to abuse.

 

DB, I have often said that when you consider that benefits are supposed to be a safety net (by the way not decided by Europe) how can this government justify below inflation increases and also making payments of CT necessary. Having said that, once a CT liability order is issued surely the council can get an attachment of benefit order or an AOE if someone is working.

 

Personally I think the whole bailiff industry and I must include all those that give paid for advice, needs addressing possibly in a similar way to the way the FCA have regulated the DCA's and the DMC's much more effectively

[mikeymack2002]

Flectch70

 

 

Somewhere some posts ago it is claimed the EA has the final word if a person is vulnerable or not, also this is the subject of this thread as well, it is now boiling down to INTERPRETAION and who has the right to decide who is/not vulnerable

 

 

But the DM in as far as DLA goes this has even more implications to the debtor/claimant

[Peterbard]

I have just emailed the MoJ on this very subject for clarification, the reason behind this is to find out what legal authority the EA has to deem whether or not a person is classed as vulnerable and whether or not he EA has the LEGAL right to over turn any decision made by the DWP a Dr or even a Consultant and deem the person NOT to be vulnerable, I think I have asked this now 3 times and no responsible reply from him has been made.

 

 

DB debtors lie, yes EA's lie some people lie. That is not the job of the EA to decide on that, that belongs to the creditor alone, then the debtor can pursue a formal complaint if the actions of the EA make the condition worse by them trying to change what the debtor has stated to be truthful.

 

 

As far as complaining to the office of the EA we all know what will happen with that, there are enough threads on that to last a lifetime.

 

 

In all honestly DB please enlighten me/us with the legislation that allows an EA to deem whether or not an EA has the authority to make that assumption?

 

 

Please also provide the legislation that allows the EA to LAWFULLY access a debtor to be vulnerable or not, failing that please provide the same as for providing the EA the medication and/or medical record to prove if they are disabled/vulnerable or not, then for the cherry on the top of the cake the legislation that allows an EA access to the medical records/condition of a debtor.

 

 

These are just basic questions I would ask of anyone coming to my front door claiming they have a right to decide whether or not I was vulnerable. As far as disclosing to an un-authorised 3rd party my medications that will NEVER happen

 

 

Again DB you have said they have the right please once again provide this proof

 

 

A note to admin these questions being asked are very relevant and should be answered to clarify the LEGAL position that allows the above to be even contemplated to be used by an EA at the door of a vulnerable person

 

 

I think I have gone above and beyond patiently trying to adress these questions, which quite honestly are more a matter of common sense rather than any legislation, as before I will respond no further to these points,from you, sorry.

[Peterbard]

Just a thought

Is the EA deciding who is vulnerable and who is not just as relevant as a DWP decision maker deciding who is ill enough to get certain benefits.

 

Not everyone with a physical disability is necessarily so traumatised by it that they can not deal with bailiffs just as someone who is physically able may have a hidden disability that would not appear obvious. It does concern me that the EA is allowed to make that decision as it leaves the who operation open to abuse.

 

DB, I have often said that when you consider that benefits are supposed to be a safety net (by the way not decided by Europe) how can this government justify below inflation increases and also making payments of CT necessary. Having said that, once a CT liability order is issued surely the council can get an attachment of benefit order or an AOE if someone is working.

 

Personally I think the whole bailiff industry and I must include all those that give paid for advice, needs addressing possibly in a similar way to the way the FCA have regulated the DCA's and the DMC's much more effectively

 

That is an interesting subject perhaps for a different thread fletch, there was a great deal of discussion both in and out of parliament regarding an independent regulator for the enforcment industry, many bodies threw there hat into the ring, some more"independent" than others, in the end it was decided to go with guidance, however there is scope for this to change following the scheduled assessments of the TCE, the first to take place this April.

[mikeymack2002]

DB The strange thing is on some points I agree with you and some points I agree with the EA and finally I think just like you the ultimate decision of whom is/not vulnerable must never be allowed to be made by an EA.

 

 

Is the list in the standards right or wrong? we in all honestly do not know. Can it be trimmed? maybe, what would the backlash be from that decision if it was trimmed?

 

 

Is it possible for the list to be improved that is a definite yes, but then again where does it stop?

 

 

A side thought here with the offence of obstructing an EA in the execution of their duties could it be seen as doing so if you fail to provide when questioned your reasons/proof if you think you may fall in to one or more of those groups.

 

 

Again this is something that is not written but can be interpreted to look a different way is it not, maybe the above is a little extreme but is it possible?

[Peterbard]

 

 

DB, I have often said that when you consider that benefits are supposed to be a safety net (by the way not decided by Europe) how can this government justify below inflation increases and also making payments of CT necessary. Having said that, once a CT liability order is issued surely the council can get an attachment of benefit order or an AOE if someone is working.

 

Fletch i was referring to the EUCoHR poverty threshold and of course since we are currently in the EU

[ploddertom]

At present we are going round in circles. There is no Legislation that dictates who or what is classed as vulnerable. Each has to be taken on a case by case basis and sometimes a wrong decision may be made either for or against. EA's do have a harder job to do now than before and I don't doubt that some carry out their duties diligently whereas others still can't come to terms with all the new rules and blunder on regardless.

 

I have unapproved 1 post as there was no need for the comment made. It may be easier to leave things where they are as this is one of those discussions that will just go round & round with no chance of resolution.

[brassnecked]

I would contend that someone on a DWP sanction on ESA or JSA would be vulnerable as they would have NO MONEY to be attached to or live on, unless they got Hardship, which would be swallowed up almost entirely by an attachment to benefit, if indeed a hardship payment could be attached to.

[Peterbard]

a

At present we are going round in circles. There is no Legislation that dictates who or what is classed as vulnerable. Each has to be taken on a case by case basis and sometimes a wrong decision may be made either for or against. EA's do have a harder job to do now than before and I don't doubt that some carry out their duties diligently whereas others still can't come to terms with all the new rules and blunder on regardless.

 

I have unapproved 1 post as there was no need for the comment made. It may be easier to leave things where they are as this is one of those discussions that will just go round & round with no chance of resolution.

 

Yes PT, at the end of the day the EA has warrant which he is entitled to enforce, there may be reasons why he cannot take control of goods or not proceed, the car may be n HP the goods may be the property of someone else, or there may be an issue of vulnerability, at the end of the day the EA has to make a determination based on the evidence in front of him, and as you say sometimes being human he will get it wrong.

[Peterbard]

There will be clearer guidnace on this I am sure, and I hope that if this thread is still here (and open) we will be able to show it. Also there will be court cases i am sure where a debtor will insist that his particularr case should be classed as vulnerable and the EA says it is not, this will create precedent for other cases. This has always been the case in bailiff law and the TCE will not alter this process.

[mikeymack2002]

PT thank you for un-approving my post it was not the right thing to say for that I apologise it was more out of frustration than anything else. I am glad that it took admin to answer the question for that I again thank-you.

 

 

At post#170 a good response at last.

 

 

TBH maybe this thread has run its course now as until the time comes and there is either an update from the authorities or a serious clarification on whom can be classed as what. all that will happen with this thread is it will start again, with the same reason for and against why someone is classed as vulnerable

[Peterbard]

PT thank you for un-approving my post it was not the right thing to say for that I apologise it was more out of frustration than anything else. I am glad that it took admin to answer the question for that I again thank-you.

 

 

At post#170 a good response at last.

 

 

TBH maybe this thread has run its course now as until the time comes and there is either an update from the authorities or a serious clarification on whom can be classed as what. all that will happen with this thread is it will start again, with the same reason for and against why someone is classed as vulnerable

 

Ah well glad that has answered you question, perhaps I misunderstood what it was you were asking when you said:

 

I have just emailed the MoJ on this very subject for clarification, the reason behind this is to find out what legal authority the EA has to deem whether or not a person is classed as vulnerable and whether or not he EA has the LEGAL right to over turn any decision made by the DWP a Dr or even a Consultant and deem the person NOT to be vulnerable, I think I have asked this now 3 times and no responsible reply from him has been made.

 

However glad you are satisfied and perhaps we can move onto something more thought provoking.

[Peterbard]

At present we are going round in circles. There is no Legislation that dictates who or what is classed as vulnerable. Each has to be taken on a case by case basis and sometimes a wrong decision may be made either for or against. EA's do have a harder job to do now than before and I don't doubt that some carry out their duties diligently whereas others still can't come to terms with all the new rules and blunder on regardless.

 

I have unapproved 1 post as there was no need for the comment made. It may be easier to leave things where they are as this is one of those discussions that will just go round & round with no chance of resolution.

 

It would be good if this thread could be left open PT I am hoping that more first hand experiences regarding how the previsions are implemented may be added by some of the other posters

[GrumpyToSayTheLeast]

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.

Sorry for the late reply, I have been out all day. Just to clarify, dodge had already confirmed what you wish to know mm. Please read all of the above. For further clarification, read posts #01 through to.....this one I'm writing now.