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Can't Pay & DCBL ruling from OFCOM case 1

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OFCOM have upheld a case against Channel 5 regarding the TV series Can't pay, we'll take it away.

 

This case starts at page 41 of the OFCOM bulletin

 

http://tinyurl.com/ycwlnaev

 

In this case it would appear that although consent was given, OFCOM found that there was no 'Informed Consent' meaning that the complainant had not been given sufficient information to make a concious decision.

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Once again, Ofcom have upheld a complaint made to them regarding the TV programme; Can't Pay We Will Take It Away. This particular report can be viewed on Page 41 of the Ofcom Bulletin and concludes on page 78. It concerns a programme that was aired on 9th October 2016.

 

https://www.ofcom.org.uk/__data/assets/pdf_file/0017/129050/Issue-367-of-Ofcoms-Broadcast-and-On-Demand-Bulletin-.pdf

 

Brief Background:

 

This is the case of a single mother. She has a 4 year old daughter with a chronic health condition (sickle cell anaemia) which affected her walking and use of her limbs and required frequent hospital care.

 

To enable the mother to work (Monday to Saturday), her daughter was placed in a private nursery. Unfortunately, the daughter was hospitalised and as a result, her mother contacted her employer to tell them that she was unable to work. She was sacked by her employer because she had taken so much time off work.

 

She advised the nursery that she no longer continue to keep her daughter at the nursery as she could not keep up the payments. She was informed that she owed £450. No mention was made in the report of the actual amount of Judgment. There was also no mention as to how a debt of £450 had risen (with enforcement agents fees) to £2,266.51 !!

 

Enforcement Agents from DCBL arrived at her property (a flat) at 8am. Unfortunately, Miss Y had not locked her front door. The agents were able to gain ‘peaceful entry’. Miss Y and her daughter were in asleep in bed and were woken by the sound of enforcement agents in her flat. A TV crew were also in attendance.

 

It was clear from the report that the enforcement agents and programme maker were of the opinion from an early stage that this young mother was not refusing to pay but could not pay. Oddly, the narrator stated that

 

'Despite the exceptional circumstances, the enforcement agents are duty bound to enforce the writ’.

 

There were no goods that could be taken into control to satisfy the warrant. None at all. The enforcement agent asked Miss Y whether she could call a relative etc to assist her in making payment. Eventually, she telephoned her ex partner and he paid £400. A payment arrangement was set up for the balance.

 

The comments made by the programme maker and both of the enforcement agents made very clear that Miss Y was considered 'vulnerable' (more on this shortly).

 

Following the visit, Miss Y complained to Ofcom on behalf of her and her daughter of unwarranted infringement of privacy.

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The comments made by the programme maker and both of the enforcement agents in the unedited footage made very clear that Miss Y was considered 'vulnerable' (more on this shortly).

 

Enforcement Agent: :

“I mean there’s no excuse to live like this, there’s none, none that I can think of. There are lots of people out there struggling and I’m sure if you go into their properties, at least it’s hoovered and cleaned, there’s no excuse for this.
But it tells me, it’s also a reflection of her state of her mind.

 

Programme maker:

Correct,
depression.
So, I have to be mindful of that and it might be issues that we’re unaware of which I’m sure Brian will explore once she’s… once she’s done what she can.

 

2nd Enforcement Agent: [to the programme makers]:

 

"I think it’s really key what Del has mentioned here, there might be underlying circumstances,
depression
and other bits and bobs going on here with her.

 

She’s a
single parent
, I think it’s... my intuition, experience say, you know
she’s depressed,
she’s a bit down, you know she’s got herself into a situation,
she’s on benefits,
she
can’t work,
08:00 in the morning she’s still asleep, you know… Maybe she’s...little bit, but you know we’ll see what’s going on, try and help her".

 

In considering the complaint, Ofcom took the above comments into consideration and concluded that the programme makers and agents were fully aware of Ms Y’s fragile and vulnerable condition.

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I appreciate that the complaint to Ofcom relates to the matter of filming and privacy but to ignore to way in which enforcement was undertaken would be wrong.

 

This comment from Ofcom on page 47 is alarming:

 

Channel 5 said that the HCEAs did arrive at My H's home without warning. It said that no warning is required to be given prior to the execution of a High Court Writ; self-evidently, warnings might lead to the frustration of the court order.

 

Channel 5 are WRONG. The regulations are very clear in that prior to a personal visit being made, the debtor must be given a Notice of Enforcement. This notice would serve as a prior 'warning' that unless the debt is paid in full, a visit would need to be made to the debtors property.

 

The comment that 'prior' warning might 'lead to the frustration of the court order' is worrying. The giving of a Notice of Enforcement is prior warning and that is a fact.

 

Sadly, there have been many reports about the lack of a Notice of Enforcement being provided by DCBL and in fact; in a recent High Court Judgment relating to the same company and also involving the presence of Brinkworth Films filming for the series "Can't Pay? We'll take it Away", the Master stated that he was satisfied on the balance of probabilities that a Notice of Enforcement did not arrive at the debtor's property....because it was never sent!!

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@ BA "In considering the complaint, Ofcom took the above comments into consideration and concluded that the programme makers and agents were fully aware of Ms Y’s fragile and vulnerable condition."

 

Bearing in mind that awareness, it was wrong and crass for the footage to be used in the programme.

 

About time CH5 and DCBL are tolchocked by the ICO for the Data protection and possible GDPR breaches due to their filming and the BWC setup.

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She advised the nursery that she no longer continue to keep her daughter at the nursery as she could not keep up the payments. She was informed that she owed £450. No mention was made in the report of the actual amount of Judgment. There was also no mention as to how a debt of £450 had risen (with enforcement agents fees) to £2,266.51 !!

 

It would also not be right to ignore the matter of the fees charged by DCBL.

 

On Page 42 of the report the narrator stated this:

 

'Ms Y originally owed just over £1,000 (for childcare) but the case was escalated to the High Court and now with costs the debt had doubled in size...

 

The following is taken from Item 7.3 of the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations 2014:

 

The fee structure for High Court cases also introduces an incentive to enter into, and adhere to, an affordable controlled goods agreement. Unless a debtor pays in full at the compliance stage, the enforcement agent is obliged to visit the debtor in every High Court case in order to take control of goods, thereby triggering the first enforcement stage.

 

If the enforcement agent is then unable to enter into a controlled goods agreement (and has to take control of goods in another manner) or a debtor defaults on a controlled goods agreement, the enforcement agent will be under an obligation to remove goods and therefore the second enforcement stage fee will also apply.

 

In this particular case, it was clear from the report that there were no goods that could be taken into control and accordingly; a controlled goods agreement could not be entered into. Therefore, the only fee that should have been charged to Miss Y would have been the first enforcement stage fee of £190 plus VAT.

 

Without knowing the precise amount of the judgment, it would seem that Miss Y had been charged the first enforcement stage fee, second enforcement stage fee and very likely, the sale stage fee as well. Absolutely shocking and this is happening right under the noses of Channel 5.

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I know the report is in the public domain but by giving so much detail of the circumstances of the case this thread is also infringing the privacy of persons concerned.

Edited by Andyorch
Typos

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I know the report is in the public domain but by giving so much detail of the circumstances of the case this thread is also infringing the privacy of persons concerned.

 

I disagree. The person was not named in the complaint and her children were not obscured. It's very likely following the ruling that C5 will not show that episode again. The information provided is from the ruling and is being fleshed out by BA to include more information not considered by OFCOM (not being required to)

 

How can a person who isn't named be protected from GDPR? As I didn't see the program (My TV would have got broken) I assume her name was also not given.

 

The ruling states that she wasn't given enough information to make an 'informed' consent therefore it would treat the case as having no consent and on this ground, I agree.

 

C5 stated that they submitted everything to their lawyers before transmission. I have to say that the lawyers were not up to the task or were given conflicting information by C5 (my opinion)

 

As it stands, the complainant now has the route to seek damages from C5 for breaches of the GDPR. (Again, my opinion)

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Agree absolutely SF, the whole DCBL/CH5 filming model drives a coach and horses through Data protection and GDPR, OFCOM have not named the Data Subject so no issue with us discussing the judment on here I hope she does seek damages for the breach.

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