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The Role of the Enforcement Agent
The role of the enforcement agent
Overview
The role of the enforcement agent will be summarised in the following chapter by way of paragraph headings.
Learning outcomes
By the end of this chapter you will be able to:
outline the key developments of the enforcement profession
describe the structure of the enforcement sector
explain the purposes of the enforcement profession
describe how the enforcement agent’s role fits into the legal process
describe the key functions of enforcement agents
explain the meaning of current terminology commonly used in the enforcement profession
describe the role of the police when called by the enforcement agent or debtor
explain how fees and charges are applied at various stages
explain the importance of correct handling of payments
Key developments of the enforcement profession
During the latter part of the twentieth century there were growing criticisms of distress as a means of enforcement. It was seen by many people as being an archaic remedy which was open to being abused because the rules and limitations were hard to find.
In 1986, the Law Commission examined distress and described it as "difficult and distasteful” and "riddled with intricacy and inadequacy”. It recommended the abolition of distress but although this did not happen at that time, stricter rules were introduced by the Distress for Rent Rules 1988 which strengthened the requirements for certification of bailiffs by the county court and introduced a complaints procedure. Although these rules related to distress for rent, local taxation regulations were subsequently amended so that distress for local taxes (rates and council tax) could also be undertaken only by a person holding a bailiff’s certificate obtained in person from the county court.
In 1998, the Lord Chancellor’s Department (now the Ministry of Justice), announced an independent review of bailiff law to be undertaken by Professor Jack Beatson. Professor Beatson finished his report in 2000, and concluded that distress should be retained but with important recommendations for change.
His recommendations were that there should be;
a single piece of legislation to replace the common law rules and their statutory developments.
statutory regulations to govern the process of "Taking Control of Goods".
regulation of bailiffs (or enforcement agents as they are now known) by a national body.
These recommendations were carried forward by Government, which after detailed consultation led to the reforms being included in the Tribunals, Courts and Enforcement Act 2007. The Act provides for a fully codified system of Taking Control of Goods under Schedule 12 of the Act, provisions that came into force from April 2014, together with regulations made under the Act. The certification procedure, allowing an individual to act as an enforcement agent, must be dealt with by a county court judge at a hearing of applications.
Within this Act Part 3 covered Enforcement by Taking Control of Goods and also recovery of Commercial Rent Arrears with a new definition of Commercial Rent Arrears Recovery. Schedule 12 of the Act covers the procedure to follow for Taking Control of Debtors Goods; however the Act was to be followed by further regulations to cover this procedure.
It was not until February 2012 the Government released a consultation entitled “Transforming Bailiff Action”, the consultation set out the proposals to simplify and clarify the process, improve accountability of enforcement agents and deal with inappropriate enforcement activity.
In July 2013 the Government released the first of its regulations “The Taking Control of Goods Regulations 2013”, the regulations introduced new procedures for the enforcement sector.
In January 2014 a further set of regulations “The Taking Control of Goods (Fees) Regulations 2014” were released these specified the fees an enforcement agent can charge. These fees replaced the former multiple types of fee scale across different enforcement processes.
The implementation of the Tribunals Courts & Enforcement Act 2007, together with the various enabling regulations, brought about major reform to the enforcement industry.
The Tribunals Courts and Enforcement Act 2007 and regulations introduced a new legislative regime that is simple to understand and which is applied consistently across all debt types.
Structure of the enforcement sector
Bailiffs and enforcement agents are people authorised to seize, remove and sell goods in order to pay the money owed to a person or organisation and to cover the cost of enforcement. This is called ‘taking control of goods’. Some bailiffs and enforcement agents may also conduct evictions and arrest people. This section concentrates mainly on The Tribunals, Courts and Enforcement Act 2007 Schedule 12 Taking Control of Goods.
There are different types of bailiffs and enforcement agents depending on the type of debt being recovered. There are laws that say what these different types of bailiffs and enforcement agents can and cannot do, what goods they can and cannot seize. Also regulations state what fees they can charge, these also differ depending on the type of debt being recovered.
High Court
County Court
Magistrates Court
Local Authority
Commercial Rent Arrears
Child Maintenance
Traffic Enforcement
High Court Enforcement Officer (HCEO)
A person authorised by the Lord Chancellor to enforce Writs of Control and similar court processes under The High Court Enforcement Officers Regulations 2004 (SI 400). Prior to 1st April 2004, this role was held by Sheriffs of Counties in England & Wales who delegated the day to day work to Under Sheriffs and Sheriff’s Officers. This work is now undertaken by High Court Enforcement Officers and their enforcement agents.
HCEOs are public functionaries who have responsibility for seizing and selling goods as commanded by the Writ of Control. In this respect, the officer has responsibilities to all parties and rules and regulations govern conduct, particularly in relation to vulnerable persons to ensure that enforcement is conducted in an effective and efficient way. The Officer’s work comes from civil claimants and their solicitors or agents and involves mainly enforcement of money judgments entered in the County Court of between £600 and £5,000 (other than Consumer Credit Act Judgments). However any order from the High Court, such as large writs of possession and all judgments over £5,000 must be enforced through an HCEO (other than Consumer Credit Act Judgments).
County Court Bailiff (CCB)
A person employed by HM Courts & Tribunals Service (HMCTS) and they are responsible for enforcing court orders for the recovery of monies, possession of property. They also undertake work under the consumer credit act and goods subject to hire purchase agreements. In addition they can execute arrest warrants for contempt of court and undertake the service of court documents. These tasks are on behalf of local County Court District Judges. They have retained the title of ‘Bailiff’ under the TCE act 2007.
Enforcement Agent (EA)
Enforcement agents can be employed in the public and private sector. They are persons who are responsible for the enforcement of orders against goods (Warrants of Control), they hold a certificate issued by a County Court which gives authority to take control of goods. This can be under a High Court or County Court judgments; Work undertaken by private companies includes,Commercial Rent Arrears Recovery (CRAR), Council Tax, Magistrate Fines, Child Maintenance and Traffic Enforcement work.
Purposes of the enforcement profession
Enforcement action is necessary when a debtor fails to pay a debt or negotiate a reasonable instalment payment regime with the creditor. The need therefore; for a workable means to enforce the payment of debts and fines is a necessary fact of life. The purpose of the enforcement profession is to:
provide proportionate and effective enforcement
to recover money from debtors unwilling to pay
to ensure that offenders ultimately pay their fines
to uphold the authority and public trust of the courts
to create conditions for a market economy and the rule of law to thrive
to ensure that creditors are paid the money to which they are properly entitled
to prevent creditors themselves facing financial difficulties
to ensure debtors do not avoid facing their financial responsibilities by ignoring or failing to pay
The enforcement agent’s role within the legal system
Creditors normally instruct enforcement agents when there is no alternative enforcement option available. It could be that the debtor has not provided sufficient information for the creditor to consider possible alternatives or the debtor has completely ignored all reminders. Enforcement agents are authorised to take control of goods, remove and sell a person's possessions in order to pay money owed to a person or organisation. In some cases they may also have authority to conduct evictions and arrest people. Enforcement agents therefore; have differing roles, depending on the person or organisation on whose behalf they are working.
Enforcement action by its very nature is intrusive. It is necessary for an enforcement agent to be assertive and firm if they are to be effective.
In this respect, the agent has responsibilities to all parties to ensure rules and regulations are adhered to, particularly in relation to vulnerable persons. To ensure that enforcement is conducted in a competent, reasonable and effective manner.
Key functions of enforcement agents
The key function of any enforcement agent is to enforce judgment debts by identifying goods belonging to the defendant. If the debtor has not paid, or made arrangements to pay, an enforcement agent may be instructed to collect payment of the debt and their costs. This is done by the enforcement agent taking control of the debtor’s goods and selling them, using the proceeds to settle the debt and costs.
Goods taken into control, gives the enforcement agent much more leverage when recovering debts. If the debt remains unpaid, the enforcement agent will generally remove goods taken into control for sale by auction to recover the judgment debt and costs incurred. This type of enforcement action is used to recover both criminal and civil debts. It is available for court debt, tax debt, local authority debt as well as recovery for the private individual.
Current terminology commonly used in the enforcement profession
The 6th April 2014 brought in new terminology, first thing to note that Certificated Bailiffs are now called "Enforcement agents”. The Tribunals, Courts and Enforcement Act replaces terms such as "Distress”, "Distraint,” "Levy,” "Seizure,” and similar terms with a new phrase which is "Taking Control of Goods”. The Writ of Fi-FA, now becomes a "Writ of Control”. A Combined Writ Fi-Fa/Possession now becomes a "Writ of Control/Possession”, a Combined Writ of Fi-Fa/delivery now becomes a "Writ of Control/Delivery”. The Walking Possession Agreement has gone and is now known as a "Controlled Goods Agreement”.
Child
A person under the age of 16 (sixteen).
Clear days
When calculating a number of days, the day on which the period begins and, if the end of the period is defined by reference to an event, the day on which that event occurs, are not included, to give the number of clear days.
Common law
Laws upheld by the courts as being accepted custom and practice provided no statute law has set them aside.
Taking Control of Goods
Schedule 12 to the TCE Act prescribes the new procedure to be followed by enforcement agents when seizing goods, to be known as taking control of goods. The Schedule prescribes the entire process to be followed by enforcement agents when taking control of, and selling goods, from the serving of a notice, to taking control of goods (including which goods may be taken), powers of entry, care of goods taken under control, the sale of controlled goods and the distribution of the sale proceeds.
Controlled Goods
Goods taken under control that have not been sold or abandoned or returned to the debtor.
Controlled Goods Agreement
An agreement under which the debtor is permitted to retain custody of the goods whilst acknowledging that the enforcement agent has taken control of them and agrees that they will not be removed or disposed of until the debt is paid.
CRAR
The process of Commercial Rent Arrears Recovery
Possession
The recovery of land after an order for possession has been obtained
Entry
An essential step prior to taking control of goods that are on private property.
Exempt goods
Goods that are specified in regulations as being items that may not be taken into control by an enforcement agent.
Goods
Means property of any description other than land.
Premises
Any place, a building or part of a building, an area of land, or moveable structures such as a tent, a vehicle, a vessel or an aircraft.
Former name was Plaintiff, Claimant or Judgment Creditor and describes an individual, company, partnership or firm issuing a court claim. In some proceedings described as an Applicant. In enforcement proceedings it is person entitled to the benefit of a judgment or order. Creditors also include – a local authority, major or frequent judgment creditors in the civil courts, Government Departments and HM Courts and Tribunals Service to whom financial penalties are paid, also landlords undertaking commercial rent arrears recovery (CRAR) for rent arrears.
Former name was Defendant or Judgment Debtor and describes an individual, company, partnership or firm subject to a court claim. In some proceedings described as a Respondent. In enforcement proceedings a person subject to a judgment or order is known as the Debtor.
Judge
A person appointed by the Lord Chancellor on behalf of the Queen to dispense the Queen’s Justice. In civil proceedings, most orders are made by District Judges, with appeal to Circuit Judges, or their equivalent at the Royal Courts in London, Queen’s Bench Masters, with appeal to High Court Judges.
Warrants of execution are renamed warrants of control, former names of County Court Judgments, Rent Distraint, Liability Orders and Magistrates Warrants, the outcome of a court claim or a hearing in the process of a claim or action.
Former name was Writ of Fieri Facias (FiFa) the authority for a High Court Enforcement Officer to enforce a money judgment by the seizure and sale of the debtor’s goods. Resulting from the outcome of a court claim or a hearing in the process of a claim in the High Court. They are also obtained by transferring a County Court Judgment from the County Court up to the High Court.
Committal
The sending of someone to prison.
To seize someone by legal authority and take them into custody.
Liability Order
A liability order is a demand to pay the full amount a debtor owes, plus costs. It gives local authorities greater powers to collect the money owed using a range of actions which include:
asking your employer to take regular deductions from your salary
taking money directly from your Income Support, Jobseeker’s Allowance or Employment and Support Allowance
asking Enforcement Agents to visit your home and either collect the amount you owe, or if this is not possible, remove items belonging to you and sell them
putting a charging order on your property, which means if debtor owns the property it’s sale may be forced to pay outstanding Council Tax arrears, or the arrears will be paid out of the amount you get for any future sale
applying to make you bankrupt
applying to the Magistrates Court for your committal to prison.
The liability order allows any of these options, but only one at a time. Normally, the debtor will be asked for information about their personal and financial situation before considering these options.
Role of the police when called by the enforcement agent or debtor
Cases of violence and assault are, in theory, covered by the criminal law but require the police to prosecute, which is usually only done in the most serious cases, which are fortunately fairly rare. Recent equality legislation also covers harassment and discrimination on grounds of race, religion, age and sexual orientation, but again prosecution is normally only undertaken in the most extreme cases.
Minor assault will often not lead to prosecution by the police and employers need to make it clear to their employees what their approach to such cases is. Failure to address such matters can leave employees feeling unsupported and disgruntled. Employers need clear policies on such cases of minor breaches of the law which would not normally lead to police prosecution.
Under the Tribunals Courts and Enforcement Act 2007, Schedule 12 Taking control of goods Part 2, paragraph 68,” a person is guilty of an offence if he intentionally obstructs a person lawfully acting as an enforcement agent. And a person is also guilty of an offence if he intentionally interferes with controlled goods without lawful excuse. A person guilty of an offence under this act is liable on summary conviction to imprisonment for a term not exceeding 51weeks, or a fine not exceeding £2500 on the standard level 4 scale, or even both”.
Constable’s duty to assist enforcement officers E+W
Where the enforcement is conducted in the High Court or the County Court, the Courts Act 2003 Schedule 7 section 5, states that it is the duty of every constable, at the request of E+W
(a) an enforcement officer, or
(b) a person acting under the officer’s authority, to assist the officer or that person in the execution of a writ or warrant...........................................................