Bailiff discussion ( moved from hijacked thread )

[Number6]

I'm not going to get drawn into this argument but I do want to restate my belief that siezure of goods in lieu of debts in the modern age is totally beyond the pale.

 

Why?

 

The bailiff system is an anachronism left over from the middle ages when goods and chattels = money. In other words a cow or a chair were worth exactly the same whether you exchanged them in barter for other goods or whether you sold them for cash. So, if someone owed a debt and refused to pay then it was probably fair enough to sieze goods to the same value as the debt.

 

This situation has not been current for at least 50 years. Goods today (unless it's antiques, or an original Renoir or a Lamborghini, etc) are next to worthless as a medium of barter. The average Joe's complete houseful of goods would probably fetch less than a grand at forced auction but probably cost 10 - 20 times that to buy.

 

It maybe wouldn't be quite so bad if the goods that were siezed were sold with some attempt to get a decent price for them, not sold to the lowest bidder, or to the bailifs uncle for peanuts. I've personally known cars worth thousands to be siezed and sold at auction for a few hundred quid.

 

The only media of exchange worth anything today (apart from the aforementioned antiques etc) are cash and labour.

 

The whole system is iniquitous and unfair and should be scrapped.

 

Yes I'm sure there are people that simply refuse to pay rather than can't pay but these are in the minority and probably make sure they have no goods worth siezing anyway - they are the clued up ones. It's the poor average guy that gets into financial difficulties that gets screwed by the bailiff system.

 

This is all well known information. Those that run the system, and the bailiffs themselves are well aware of the serious iniquities inherent in it which is why I think that a bailiff, any bailiff is the lowest of the low and I wouldn't give any of them the time of day. No-one with a conscience would ever be a bailiff, I couldn't do it if my life depended on it.

 

Pete

[Number6]

But What do you do when you are the poor average guy who's owed, and the other guy won't pay?

 

I have just posted another thread asking precisely this. I am in a situation of person v person, and the other one is refusing to pay me money owed. Why should I be out of pocket? What resource have I got if that person continues to refuse to pay even after a court order? What am I supposed to do?

 

Sorry, Pete, but there is a need for bailiffs, like there is a need for lenders who take higher risks, and garbage collectors. They're not popular and not many would do their job. But the clue is not in the man, it's in the profession, which needs to be seriously regulated. Our decent bailiffs on this forum would not disagree.

 

BW

 

If there was a genuine demarcation line determined somehow between those that can't pay and those that won't pay then I'd be much happier. But this does not happen. Those that won't pay won't pay even if you send in the bailiffs, they'll have it sussed so that they'll have no siezeable goods - trust me on this. It's the ones that get into a mess and can't pay that have all the nice stuff that the bailiffs sieze and auction for pennies. You'll end up paying for an enforcement warrant and the bailiffs will report back that the debtor has no goods of value. so you'll be worse off, not better.

 

And the bailiff industry is about to be differently regulated. There is a Bill currently under discussion that, if passed will give bailiffs the right to force entry to your home and if needs be to use force in order to sieze goods. Is that a forward looking step to take? I don't think so.

 

Pete

[Number6]

Pete. I respect your right to your opinion but clearly we will have to agree to disagree. Whatever your feelings on bailiffs they exist in every part of the world from Africa to Russia and Trinidad to Germany. The reason they exist is a last resort to force payment where payment is due by taking away goods when payment is not made. Provided the seizure is appropriate - it works. Most people become focussed on the priority of a debt when faced with bailiffs, which is why the vast majority of bailiff action is made not on consumer debt but on public body / state debt - or essential payments if you like, such as council tax and business rates (which are vital to the economy) or fines (which are vital to uphold the justice system). How would you feel if someone who broke into your home or assulted you or a member of your family was fined and decided not to pay? Would you think it was a good thing to have a bailiff force the issue or better that they were perhaps put in prison or just let off? I know we're not popular, but neither are the police when you've broken the law.

 

The law is (or should be) based on equity. The law upholds fairness essentially.

 

The bailiff system is INIQUITABLE - it's unfair and therefore morally wrong.

 

If someone broke into my home and / or assaulted my family I'd be VERY unhappy if all they got was a fine! I would rather see them banged up so your point means nothing to me. It does me no good in those circumstances whether they pay a fine or not so I don't really care either way.

 

A large percentage of Council Tax goes into topping up the council employee and police inflation proofed pension fund so I really don't care if other people pay their Council Tax or not. I pay mine because I'm a good citizen and I bow down to the current Sherrif of Nottingham when he calls to collect!

 

No, the bailiff system is unfair in it's premise and operation in modern society.

 

Pete

[Number6]

Fair enough! The true secret of giving advice is, after you have honestly given it, to be perfectly indifferent whether it is taken or not and never persist in trying to set people right. -Hannah Whitall Smith, Inspirational author (1832-1911)

 

I like that! That's my type of sarcasm, must remember it

 

Pete

[Number6]

We were not arguing, we were having a civilised debate!

 

Quite right.

 

I never argue! Hence I never get drawn into arguments

 

Pete

[Number6]

I wrote to my MP a few weeks ago regarding bailiffs and the proposed new legislation contained in the current government Bill entitled "Tribunals, Courts and Enforcement Bill".

 

This bill, if it were to be enacted contains worrying clauses that would enable a bailiff (or enforcement agent as they are now referred to apparently) to forcibly enter private premises, and sieze goods using force if necessary in order to do so.

 

We are told that such forcible entry powers will only be used as a last resort but who defines last resort??

 

The reply that my MP has received from Harriet Harman at the DCA has been passed on to me and I reproduce it here in full:

 

Selborne House

54 Victoria Street

London SW1E 6QW

 

Department for

Constitutional Affairs

Justice, rights and democracy

T 020 7210 8683

F 020 7210 8620

E [email protected]

http://www.dca.gov.uk

 

********* MP

House of Commons

London

SW1A OAA

 

Our ref: 206601-1 ‘ 2006

 

Number6, ***********************

 

Thank you for your letter of 29 September 2006 to Alistair Darling MP and your further letter of 9 October 2006 to Lord Falconer, enclosing correspondence from your constituent Number6. Number6 is concerned about bailiff practices and measures that are contained in the draft Tribunals, Courts and Enforcement Bill. Both letters have been passed to me for reply as I have ministerial responsibility for the courts in England and Wales.

 

Current bailiff laws are complex and varied. These were looked at in detail as part of my Department’s Review of Enforcement, which was commissioned by the previous Lord Chancellor, Lord Irvine, in 1998 and completed in 2003. On the 25 July this year we published a draft bill, the Tribunals, Courts and Enforcement Bill to effect changes to a range of enforcement laws, amongst other things.

 

One of the areas which received considerable interest during the consultation process was the issue of forcible entry to premises. The draft Bill contains proposals which would enable enforcement agents to force entry into debtors premises when enforcing a civil debt, to enable them to search for and seize goods, which can then be taken into control and if necessary removed and sold at auction to pay the debt. This power will only be used as a last resort and when specific judicial authority has been granted for forced entry to be used. Each individual case will be judged upon its own merits, and the criteria for granting forced entry will be strict. This will ensure compliance with Human Rights legislation.

 

The draft bill also contains provisions for introducing a single piece of bailiff law. This is intended to unify and rationalise the mix of legislation and common law that currently governs what bailiffs do and what they can charge for.

 

A new fee structure that is designed to support the principles of transparency, consistency and proportionality, is included in this programme of reform.

 

In addition, provisions are included for enhancing and extending the existing bailiff certification process. These provisions will strengthen existing requirements regarding training and understanding of the law, and extend the certification process to all individuals in the private sector who take goods and sell them to recover a sum of money. The draft Bill is available via my Department’s website, the link to which is http://www.dca.gov.uk/Ieciist/tribenforce.htm

 

It will be introduced when parliamentary time allows.

 

Realising that changes to primary legislation were required and that these would take some time to effect, my Department worked closely with creditors and the enforcement profession to produce the National Standards for Enforcement Agents. These standards, which were launched in April 2002, are intended for use by all enforcement agents, public and private, the enforcement agencies that employ them and the major creditors who use them. The standards advise that appropriate discretion should be used when dealing with those who might be potentially vulnerable e.g. the elderly, people with a disability and single parent families. The standards also advise that Enforcement agents ensure that the value of the goods impounded in satisfaction of the judgment is proportional to the value of the debt and charges owed.

 

This publication, which is effectively a best practice guide and is not therefore legally binding, cannot, and is not, intended to replace legislation in the future. It is, rather, an opportunity and commitment from the profession (and creditors) to raise standards across the whole of the enforcement sector. The Standards have been widely endorsed, by, amongst others, the associations representing bailiffs.

 

Bailiffs are currently self-regulated and there are established procedures for lodging complaints against them that are independent of my Department. Information on these procedures can be found in the enclosed EX345 leaflet, titled About Bailiffs and Enforcement Officers.

 

The BBC programme referred to by Number6 showed bailiffs in the employ of Drakes Group Limited and CCS Enforcement Services apparently in breach of the proper procedures for executing warrants issued by Magistrates’ Courts. We take any allegations of impropriety very seriously and consequently, Her Majesty’s Courts Service an executive agency of my Department, has launched an immediate investigation into the issues raised. When the investigation is complete we will take the appropriate action.

 

I enclose a further copy of this letter and the EX345 Leaflet for you to send to Number6, should you wish to do so.

 

HARRIET HARMAN

 

Pete

[Number6]

The bailiff system is INIQUITABLE - it's unfair and therefore morally wrong.

 

I hate to say it but Number 6 has this ablolutely right and has put it far more elequently than i could.

Peter

 

Cheeky sod!!

 

Pete

[Number6]

He!He!

 

By The way i got the same letter back from Hariet as you did .

Particullarily liked the bit about refusing to open their door. I thought that was what doors were for so you had the option who you wanted to grant access to your property or otherwise.

 

Sorry, what bit about doors?

 

Pete

[Number6]

Bailiffs do not need to be invited into a dwelling in order to enter but must make a peacable entry - whether or not someone is there.

 

Herein lies one of the problems.

 

Peaceable entry means entering by invitation or through an already open door or window.

 

Now lets suppose a (less than scrupulous) bailiff arrives when no-one is at home and he just happens to slip and fall against the door whilst holding his credit card which then proceeds to slip into the gap between door and frame and just happens to slip the Yale lock... ( )

 

Bailiff then walks in and takes possession, walking or otherwise.

 

How can the poor householder then prove that the bailiff did not gain peacfull entry? They can't.

 

I have known this to happen.

 

A bailiff (accepting for the moment the premise that there should be such individuals in the first place) should never be able to lawfully enter premises if the owner / tenant is not there.

 

Pete

[Number6]

Peaceable entry means entering without the use of force and is slightly more extensive than you describe but, for the sake of debate, a reasonable enough description. Your scenario is however somewhat extreme and I have never personally known a bailiff to do as you suggest. Equally, my bailiffs have been faced with open doors, entered and found no-one in the house or outside in the garden and rather than remove goods, which they can of course lawfully do, have instead left a levy of the goods inside the house. This emphasises the fact that they can and have entered the property but at least gives the debtor an opportunity to pay before the goods are actually removed. Obviously there are individuals in all walks of life who break the rules like the occasional policeman who plants drugs to secure a conviction (allegedly!) but that does not mean that the power vested in all policemen is too great. Nor does it mean that all bailiffs are housebreakers or that all policeman create evidence to fit up the villains!

 

Explain please, how is peacefull entry more extensive than I have described?

 

In any event, IMO lawful entry should not be possible if the debtor is not present, except in extreme criminal cases maybe, certainly not in furtherance of a civil matter.

 

Pete

[Number6]

You are right to separate the civil matter (let's say council tax and parking penalties) as unpaid fines, compensation orders and confiscation orders can be pursued with more vigour and by forced entry (under the Domestic Violence, Crimes and Victims Act). Peacable entry can be achieved by walking through an open door or a closed but unlocked door (it doesn't have to be ajar as it were). If a bailiff finds the key is left in the door, even though it is locked (most front doors lock when closed), then the bailiff can turn the key and unlock/open it - the key is seen as an invitation to enter. As you stated, he can climb through an open window or skylight. However, unlike the closed but not locked door, a bailiff cannot climb through a window which is closed but not fastened. He cannot open the window even though it is not locked as it is not a normal means of entry, whereas the door is. He also cannot open a window which is partly open but fastened. If a door or window are already broken when the bailiff arrives, he may enter through them. Bailiffs can also climb walls and fences and cross gardens provided no damage is caused. (Listen, I didn't make the rules, I just follow them!!!) Bailiffs have a right of entry to property and while acting lawfully under a warrant cannot be trespassers.

 

What you state is what I understood the rules to mean so thanks for confirming that.

 

What actually constitutes entry?

 

I'm thinking about a situation perhaps where there is an entrance porch that has a lockable front door and a further lockable door into the house proper. If the outer porch door was open but the inner door locked shut would the bailiff have gained entry by crossing the porch threshold, or not?

 

Similar situation with a conservatory - lockable outer and inner doors.

 

Pete

 

Pete

[Number6]

If, however, you refuse entry before a bailiff has entered the property (except for unpaid fines etc) and no previous peacable entry has been made, then you have a lawful right to resist entry but within limits. You may use reasonable force.

 

Sorry but again there is an implicit excuse for improper behaviour here.

 

The situation should never arise. Bailiff calls, householder says you cannot pass, bailiff should walk away. There should be NO QUESTION that the bailiff then tries to muscle his way in and if he does then he is acting no better than a burglar or mugger. I would then be in fear for my own and my families safety and would have no qualms about grabbing the crowbar that I'd recently been using on a DIY project near the front door and resisting entry with it! That to me would be reasonable force under the circumstances.

 

Pete

[Number6]

'Unfortunately, Mrs Harman’s letter contains two significant errors. The provisions of the draft Tribunals, Courts & Enforcement Bill will not ‘extend the certification process to all individuals in the private sector’. Her colleague at DACE, Brenda Prentice MP, made a similar mistake when she replied to a Parliamentary Question from John Mann MP recently. Section 45 (5) of the draft Bill exempts some private bailiffs from holding a certificate, including most of the bailiffs featured in BBC’s Whistleblower programme broadcast on 26 September.

'The powers of forced entry in Schedule 11 of the draft Bill will not apply to all cases. Section 47 of the draft Bill does not abolish common law powers of entry and Schedule 12 does not abolish the liberal power of forced entry by bailiffs in Schedule 4A, paragraph 3, of the Magistrates Courts Act 1980 (which was created by the Domestic Violence, Crime & Victims Act 2004).'

 

Thanks for that information Recycler.

 

I need to do some more reading methinks!

 

Pete

[Number6]

'Unfortunately, Mrs Harman’s letter contains two significant errors. The provisions of the draft Tribunals, Courts & Enforcement Bill will not ‘extend the certification process to all individuals in the private sector’. Her colleague at DACE, Brenda Prentice MP, made a similar mistake when she replied to a Parliamentary Question from John Mann MP recently. Section 45 (5) of the draft Bill exempts some private bailiffs from holding a certificate, including most of the bailiffs featured in BBC’s Whistleblower programme broadcast on 26 September.

 

It looks like a case of Ms Harman being "economical with the truth".

 

S 45(5) of the Draft Tribunals Courts and Enforcement Bill appears to exempt any enforcement agent working for a county or district council under Section 125A of the magistrates Courts Act 1980 and subsequently the Magistrates' Courts (Civilian Fine Enforcement Officers) (No. 2) Rules 1990:

 

3.—(1) For the purposes of subsection (2) of section 125 of the Magistrates' Courts Act 1980[4] (warrants) and subsection (2) (a) of section 136 of that Act (committal to custody overnight at police station for non-payment of sum adjudged by conviction)—

 

(a) local authorities, police authorities and magistrates' courts committees are authorities of a prescribed class; and

 

(b) a person employed by any such authority is authorised in the prescribed manner to execute warrants to which those sections apply within the area for which the authority in question performs its functions if he has been issued by or on behalf of the authority by which he is employed with an authorisation in writing in that behalf in a form suitable for identifying him to persons with whom he deals as a person so authorised.

 

(2) In paragraph (1) above, "local authorities" means—

(a) a district council,

(b) a London borough council, and

© a county council.

 

So as you rightly state Recycler any bailiff collecting unpaid Council Tax or parking fines will be exempt from certification under this Bill.

 

Another letter to my MP is called for now.

 

Pete

[Number6]

I have been lurking on this thread and watching with interest.

 

Whilst I don't agree with some of the vitriol flying about (please calm that down) I do have severe reservations about the whole bailiff system. I've already posted to the effect that it cannot be justified to sieze someone's worldly goods to sell for a pittance. The system is an anachronistic hangover from medieval times when goods = money; it's no longer the case and hasn't been for many, many years.

 

I've also said that maybe it can be justified if a real effort was made to seperate the can't pay's from the won't pays. Take me as an example; I don't mind saying we're struggling for cash at the moment and as a consequence we're struggling to pay our council tax bill (£150 a month). But we earn "too much" to qualify for any rebate. We may have to decide at some point to feed our kids rather than pay the council tax in which case no doubt our friends the bailiffs will become involved at some point. Now in such circumstances Mr Bailiff will have the full backing of the law when he comes to take away stuff that we've worked hard to buy and which our kids use and need but is Mr Bailiff morally justified when we have made every effort to sort out our finances but failed through no fault of our own? I'm sorry but this smacks of Sherrif of Nottingham tactics rather than the act of a morally upright society.

 

And who makes a person become a bailiff? Who could be a bailiff?? I would never be able to go into someones home who's only crime is to not be able to afford a tax bill and remove everything they own! I couldn't do it if my life depended on it! If no-one volunteered to become a bailiff it wouldn't happen. What character (or lack of character) does someone have to have to be able to do this job AND be able to sleep at night?? I know I'd sooner sweep the streets with my bare hands than be a bailiff.

 

There is a need for enforcement somewhere along the line, but that line is not defined and too many "innocents" are bullied into paying what they can't afford (not WON'T afford) or losing everything they've worked for.

 

So blfuk1 - tell me, why are you a bailiff?

 

Pete

[Number6]

blfuk1

 

Thanks for replying.

 

I appreciate you taking the time and trouble to do so but you do not answer the questions fully. You make no comment upon my example. We have very genuine reasons for not earning much at the moment, and for the past while. We are not "avoiding" paying any debts but we have a choice between feeding the children or paying council tax. Our worldly posessions are few and in all probability if you siezed everything of value we own and auctioned everything it would barely make the equivalent of a years council tax. Now the law will side with the council and therefore with the bailiff but HOW COULD YOU BARGE INTO A SITUATION LIKE THAT AND TAKE EVERYTHING????? I could not!! How can you possibly justify it?

 

I'm sorry if this offends but I cannot understand how any person could voluntarily do that to another.

 

Pete

[Number6]

I too have been watching this debate with interest as I must say this ... just as there are the "can't pay" and "won't pay" types of Debtors out there this thread clearly demonstrates that there are also the "don't understand" and the "don't want to understand" posters on this forum. The information regarding the laws of distress that blkuk1 explains in great detail to anyone that asks is in fact totally accurate. It's a fact, don't believe it? .... look it up. What I see here is a very distinct similarity to the "won't pay" debtor and the "don't want to understand" type of poster inasmuch as they both rely heavily on their own ignorance to justify their attitude to the Law and its remedies.

 

I see.

 

If you're referring to me then I take GREAT exception. I fully understand the law in respect of the rights of entry of bailiffs in collecting the various types of debt and what is allowed to be levied. I am neither a "don't understand" nor a "don't want to understand"!!

 

No-one is disputing "the law" in these cases.

 

What we are taking issue with is the applicability of a medieval and anachronistic process without regard for the moral principles that underpin (though I do begin to wonder) a modern and democratic society. I am also questioning the moral terpitude that allows anyone to do the work of a bailiff in the particular type of circumstance that I describe without their conscience preventing them from ever sleeping!

 

Pete

[Number6]

I for one sleep very well at night knowing that I get it right ....

 

Then that makes two bailiffs in the UK that claim to "get it right".

 

Now can we get real?

 

If I do not pay council tax and the council obtain a distress warrant then the enforcing bailiff will attempt to sieze goods so who are you trying to kid.

 

And furthermore, even if there is such a thing as a bailiff with a conscience as you describe that does nothing to take away the fear that a family faced with such action lives under the shadow of. Not being able to leave a window open, or a door unlocked, ever, even in stifling heat. Not letting your kids play outside for fear that they'll leave a door open. Telling your kids not to answer the door to anyone. Having to park any vehicles in a lock-up away from home for fear that the bailiff will clamp it or sieze it. The fear that every time you leave the house a bailiff will follow you to find out where your car is, etc. Do you want me to go on? The bailiff system forces people to live like hunted animals!

 

No doubt you will have an answer to that as well.

 

Pete

[Number6]

Sounds like you watch too much telly Number6 ... hunted animal !?!

 

Well, that's a very intelligent answer to what I thought was a pretty fair point! NOT!

 

That simply proves to me the moral level that bailiffs operate on.

 

Pete

[Number6]

 

Anyway, I previously asked Tideturner and Number6 a straight question, which I note neither have given a straight answer to, if at all. Interesting!

 

What's interesting about it??

 

There's nothing to answer.

 

I'm not a moneylender so no-one owes me anything.

 

If someone else in my area hasn't paid their council tax, so what? It costs more for the council to attempt to collect than the amount they recover so that's meaningless. Anyway, council tax defaulters are ususally in the "simply cannot pay" group.

 

What concerns me is that if someone's circumstances are such that they cannot afford to pay their taxes, then surely the system will take account by way of benefits, tax credits, etc.

 

Yeah, right! Even pensioners on £150 a week can't get council tax rebate! We get Working Tax Credit and Child Tax Credit, I'm self employed and work has been so light this year that I currently don't owe any income tax. Can we get council tax rebate - can we hell. No, we still have to find a large percentage of our gross income to pay council tax of £150 a month (five years ago it was £50 a month!). That's on top of our (like everyone elses) fuel bills doubling over the past two years. Don't tell me that the benefit system takes care of people.

 

I am careful not to allow my customers to run up large bills and I'm carefull with whom I do business. I have only ever three times had to raise a county court action against a business debtor and all were settled immediately without need for recourse to bailiffs.

 

If it's a criminal fine you are collecting then that doesn't help me, even if it's a fine against someone that's injured me so again I couldn't care less whether it's collected or not.

 

If it's a parking fine or a clamping "fine" then I view both of those as legalised extortion anyway.

 

So in answer to your question I don't allow myself to get into the position on having to collect money.

 

The big creditors, the banks and CC companies know what they're letting themselves in for when they lend. Statistically there will always be a percentage of bad debt. If a lender is prepared to lend and it goes bad through no fault of the debtor (illness or unemployment for example) then that's tough luck on the lender, it's a cost of doing business IMO.

 

I also maintain (from prior knowledge) that those that won't pay usually have it sussed so that there's nothing for the bailiff to collect anyway. It's the poor sods that fall on hard times that the bailiffs turn over.

 

Pete

[Number6]

Sounds like you watch too much telly Number6 ... hunted animal !?!

 

No, sorry. I REALLY do not like this comment. It's insulting to me and others!

 

I've been in the situation - have you?????

 

I had a long-running battle with the CSA who claimed £13,000 off me in unpaid maintenance. It was total rubbish but ended up going to bailiffs before they finally agreed I actually owed the £1200 that I originally said I did, AND that I had already paid.

 

I suffered several weeks of feeling like a hunted animal through NO FAULT of my own. I was afraid to leave the house for fear that they'd call while my wife and / or kids were in. I had threats shouted through the letterbox by tatooed gorillas, I had threats of physical violence - the usual crap of "we'll be back with a locksmith and the police"!! Etc., etc.

 

fairblf - don't make insulting comments when you obviously either know nothing or do know but couldn't care less.

 

Pete

[Number6]

I'd like to know and it's not a stupid question but what is the difference between a bailiff and a debt collector.

 

I can think of a number of flippant answers to this most involving questioning parentage but I will resist.

 

A bailif tries to recover a debt after a court judjment has been issued.

and works to enforce a warrant issued by the court.

 

A debt collector generally can be the orriginal creditor or someome hired by them to recover the debt prior to going to court.

 

The major difference is that a debt collector has NO legal rights whereas a bailiff has.

 

A debt collector has no right to phone you or to call at your house. You can tell a debt collector to go away and only communicate with you in writing.

 

A bailiff has the right to call at your home and to take goods if he gains lawful entry.

 

Pete

[Number6]

Steady everyone has some legal rights;)

 

Peter

 

Even a debt collector???

 

Well, you learn something every day

 

Pete

[Number6]

I note there's been no response to my post #112

 

Pete

[Number6]

Deafening silence it is then!

 

Pete