Time to think again about an enforcment ombudsman?

[wonkeydonkey 800]

July7th 2016

Back in April 2011,

I issued through Bailiff Studies Centre a discussion document (number three in the series) entitled

"Do we need an enforcement services ombudsman?"

The query was met with enthusiasm from some and wariness by others.

Since then, of course, matters have moved on considerably.

 

 

At the time of writing it still appeared likely that the Security Industry Authority would have some regulatory role in the sector and that the introduction of the reformed regime of bailiff law would lead to a considerable strengthening of the procedures for licencing and monitoring individual agents.

None of that happened.

 

 

The SIA dropped out of the picture and the rejigged certification process brought in to the Civil Procedure Rules in 2014 is very far from comprehensive or robust.

 

 

We were promised thorough training for county court district judges; there is little evidence of this.

A recent issue of Bailiff Studies Bulletin highlighted some of the problems with the qualifications upon which certificates are issued and there is, of course, no regulation of agencies, only individual agents- a bizarre result in the early 21st century.

 

We still lack any sector overview and any industry wide maintenance of standards or best practice.

It seems to me that there is still a very strong argument for some for of regulator

(the commercial body Ombudsman Services were interested in the function five years ago).

 

 

I would propose, too, that this regulation is not limited to enforcement agents and agencies.

I suggest that there would be a useful function for all parties (not just debtors) for those offering advice on bailiff law also to be regulated.

 

 

With the proliferation of web based advice and consumer forums,

I believe that there may be a role in setting and maintaining standards wherever consumers are asked to pay for advice on dealing with debt enforcement.

 

John Kruse

 

debt & money trainer & consultant, author

[wonkeydonkey 800]

Meant to post this on discussion thread, could a mod please move there, thank you.

[stu007 2,553]

No Probs WD moved as requested

[brassnecked 1,841]

Definitely needed, some form of Regulator, might not suit the likes of Capita, they would probably lobby against it. Bohill would be unhappy also, as the programme dicussed on here might have been referred to the Regulator if there was on, as evidence of unlawful actions during Enforcement.

[Bailiff Advice 3,271]

A good discussion thread WD and one that I will be happy to contribute to later today.

[Coughdrop 101]

It seems to me that there are some organisations already in place to oversee things, but they are either not being used, or if being used, the organisation is not acting. There appear so many people in breach of the law at present, intentionally or unintentionally. Here's a couple of examples:

 

1. A business which charges for advice, holding and processing data without being DPA registered - this is something which could, and should be cracked down on immediately as the ICO is already in place.

 

2. A business which charges for advice, where the advice (or elements thereof) rightly falls under the remit of the Financial Conduct Authority - it is easy to fall foul of this, and anyone found to be in breach should be reported and penalised appropriately (now define appropriately).

 

3. A very basic thing, which should have been mentioned under No.1 - When I was DPA registered, I had to ensure that security to the information about people held on my computer met a certain standard - one which went quite a way beyond a simple password. At that stage I held data in encrypted vaults using what was then fairly expensive software. How many data controllers operating a small business giving bailiff advice on the Internet or over the phone have this sort of security, so if a burglar steals the equipment, they cannot access personal information? This would include things like Outlook being fully secured if enquiries come in via email, phone lines and answering systems being secured somehow if queries come on over the phone etc... etc... etc.... Another one for the ICO. Also, just because you may not have to be registered with the ICO does not mean you do not have to comply with the DPA.

 

So two large organisations, with teeth, which can already deal with breaches.

 

The separate issue is one enforcement companies, enforcement agents and companies, or small businesses offering advice. This, in theory, would be very much welcomed by all, and the independent regulation of 'the bailiff industry' is long overdue.

 

In terms of the 'advice' side of the industry, it is fraught with difficulties. We see arguments arising on here from differing, but entirely legal and accurate interpretations of legislation. Any official body would need to be flexible enough to accommodate these differing opinions, and apply penalties accordingly.

 

Personally, I'd crack down in a major way on ensuring existing organisations (the ICO and FCA) do their job properly, and ensuring those giving advice are, where necessary, registered with these bodies. I'd look to set up an independent body overseeing all bailiffs and bailiff companies (I'm using old language!) If these steps were taken, I think we'd see a big difference.

 

After this, we look to proper, rigorous training, certification and compulsory CPD for anyone charging for advice, along with regular re-certification and possibly some sort of inspection system - good luck to whoever tries to tackle this one. The basics for the ICO and FCA already exist though. Ensuring requirements for those are complied with in full would be a good start.

 

Without any real depth of thought, these are a very brief version of my initial views of this complex area. I could write all day long about almost any aspect of these, but will save you the tedium!

Edited July 14, 2016 by Andyorch
edited

[Coughdrop 101]

I would be surprised if John Kruse has just left such an open-ended conclusion to an article. Did he come up with what he thought should happen, and if so, what does he think?

 

Is there any chance of you posting the outdated article from 2011 as well please?

[wonkeydonkey 800]

I would be surprised if John Kruse has just left such an open-ended conclusion to an article. Did he come up with what he thought should happen, and if so, what does he think?

 

Is there any chance of you posting the outdated article from 2011 as well please?

 

The article was sent to me via Linkedin and I copied and pasted it here for discussion, I do not have the 2011 article.

[silverfox1961 4,625]

I see a problem. Evidence!

 

In many cases of complaint, there is no video or audio to back up what has been claimed so it's a case of he said, she said. this is most unsatisfactory. I don't now if ALL EA's have to wear a body worn camera or not but even so, how many times would these cameras 'malfunction'?

 

While an overseer (of some sort) could collate the amount of complaints against a company to see if there is a pattern of abuse, this could fall foul of the FMOTL lot who would encourage everyone to make a complaint. This would clog up the system and genuine cases may get overlooked due to amount of false complaints.

 

So, a good idea in principle but enforcing will be one big uphill struggle.

[Coughdrop 101]

The article was sent to me via Linkedin and I copied and pasted it here for discussion, I do not have the 2011 article.

 

No problem WD, thank you.

[Peterbard 3,082]

There was much discussion between the candidates when the act was passed back in 2007, much of which would still be applicable today.

 

It may be worth looking at some of the reason that their applications where unsuccessful at the time.

 

Many of us were in favor of a new and completely independent regulator being created, but there were prohibitive costs implication I believe.

[Coughdrop 101]

There was much discussion between the candidates when the act was passed back in 2007, much of which would still be applicable today.

 

It may be worth looking at some of the reason that their applications where unsuccessful at the time.

 

Many of us were in favor of a new and completely independent regulator being created, but there were prohibitive costs implication I believe.

 

Was that a regulatory authority for bailiffs, or was it to include the advice sector as well?

 

I do think elements of the advice sector are covered by the ICO and FCA as stated, and will look into this more. There may well be some who offer online advice with regards to bailiff matters and/or offer a charged for telephone consultation who clearly fall foul of these immediately. If they are in breach, or suspected to be in breach, clearly they should be reported.

 

An independent regulatory authority for bailiffs themselves would be great, though I suppose there is the EAC2 for fitness to hold a certificate, and courts for anything in breach of legislation.

Edited July 14, 2016 by Andyorch
edited inserted with regards to

[Bailiff Advice 3,271]

WD, it was clear to me when reading this thread that the 'discussion' was concerning whether or not the enforcement industry should be 'regulated'.

 

Since the regulations were amended, a lot of improvements have been made. There has been a 'One Year' review, and analysts are continuing to monitor the regulations. Changes have not been made, and it is generally now assumed that any such changes will not take place until the full 3 year review early next year. I am hoping that the appointment today of a new Justice Minister will not delay this procedure.

 

As I have said a number of times, the fees that may be charged by an enforcement agent are based on the figures that had originally been proposed by an economist almost 7 years ago and despite the government pledging that fees would be reviewed each year, they have not as yet been increased. That in itself must be good news for all debtors.

 

To my mind, the Local Government Ombudsman are perfectly well able to deal with complaints and they do a very good job and seem to fully understand the enforcement regulations. I have frequently posted copies of decision from them on this section of the forum.

[wonkeydonkey 800]

It was the Ombudsman decisions that you have posted previously, made me post John Kruse's latest comments. While the LGO do deal with complaints to the best of their ability the process does tend to get bogged down, perhaps John has a point when he says an 'independent regulation of 'the bailiff industry' is long overdue'

[Andyorch 10,500]

Here we go again.....another day another thread.....off topic posts removed.

 

Andy

[Coughdrop 101]

With total respect this article is to do with two areas. It's to do with regulation of the enforcement industry and those giving paid advice regarding it.

 

"I would propose, too, that this regulation is not limited to enforcement agents and agencies.

I suggest that there would be a useful function for all parties (not just debtors) for those offering advice on bailiff law also to be regulated." (John Kruse)

[Peterbard 3,082]

Yes the regulator would regulate the TCE, any other problems would be refereed to the individual regulatory bodies as they are now of course.

 

I am not sure I agree about the independent regulator though. I think public confidence issues alone would justify some kind of independent regulator.

[Coughdrop 101]

Yes the regulator would regulate the TCE, any other problems would be refereed to the individual regulatory bodies as they are now of course.

 

I am not sure I agree about the independent regulator though. I think public confidence issues alone would justify some kind of independent regulator.

 

I agree entirely.

[Andyorch 10,500]

Changed...please read your PM I have sent you.

 

Andy

[Coughdrop 101]

Thank you! Someone has been very kind - thank you so much.

[Bailiff Advice 3,271]

 

I am not sure I agree about the independent regulator though. I think public confidence issues alone would justify some kind of independent regulator.

 

Thankfully, I have a rather 'odd' filing system whereby, if I have a document or notes that I want to ensure that I do not lose, I send a copy to home email address. I looked a few moments ago, and found my notes from a 2012 meeting when the subject of a 'independent regulator' was being consulted upon. I have emailed a copy to you. I am sure that this may bring back some memories of the early discussions surrounding this important subject !!!

[Peterbard 3,082]

Thankfully, I have a rather 'odd' filing system whereby, if I have a document or notes that I want to ensure that I do not lose, I send a copy to home email address. I looked a few moments ago, and found my notes from a 2012 meeting when the subject of a 'independent regulator' was being consulted upon. I have emailed a copy to you. I am sure that this may bring back some memories of the early discussions surrounding this important subject !!!

 

Yes it does, I had forgotten all about it, i do not think that meeting ever took place, at least never in the public domain. Thanks for the accompanying upto date info also.

[Bailiff Advice 3,271]

Yes it does, I had forgotten all about it, i do not think that meeting ever took place, at least never in the public domain. Thanks for the accompanying upto date info also.

 

Naturally the meeting took place, but what you have, is my notes which are a excellent reminder as to the reason why the government felt that an independent regulator would not be necessary. The Security Industry Authority had initially been the preferred choice, but when their status changed in 2010, the plans were shelved. The government's preferred option was to implement Part 3 of TCE.

[Peterbard 3,082]

Naturally the meeting took place, but what you have, is my notes which are a excellent reminder as to the reason why the government felt that an independent regulator would not be necessary. The Security Industry Authority had initially been the preferred choice, but when their status changed in 2010, the plans were shelved. The government's preferred option was to implement Part 3 of TCE.

 

 

D|id it, remember all the argument about who to invite and what the agenda would be but do not remember an actual minuted meeting, I remember that the BPA were also a candidate at one time. The SIA were as you say a front runner.

[Peterbard 3,082]

Ah I see you are refering to much later , i was refering to when the act was enacted.