Consultation Paper on Bailiff Reform.
CHAPTER 3: NON –REGULATORY OPTIONS
On 13th January 2012, the Justice Minister; Jonathan Djanogly unveiled an updated National Standards for Enforcement Agents (NSEA) and confirmed that they will be adopted by Councils and other authorities. The link to this can be found below:
National Standards for Enforcement Agents
According to the Press Release the National Standards have been “tightened so that people are protected from rogue bailiffs” and that the additions tackle….“intimidating and threatening behaviour....prevent bailiffs from misrepresenting their powers....and reinforce rules about how firms should resolve complaints about rogue agents”.
The Minister also confirmed that... “the few unscrupulous bailiffs must be stopped from putting people in harm’s way or taking advantage of the vulnerable” and that.... “we want to bring an end to the rogue behaviour that can make people’s lives a misery”.
At first glance many people may believe that the Ministry of Justice has made some real changes to the guidance but….on closer inspection, this is sadly not the case.
The additions consist of 6 very short sentences and given that these standards have remained unchanged for nearly 10 years, it is very disappointing that further changes had not been made.
I have carefully compared the revised guidance with the original from 2003, and on the forum I have highlighted the changes and additions.
A link to this sub forum can be found at the end of this Newsletter.
The background to the National Standards for Enforcement Agents goes back to 1998 when the government announced an Enforcement Review and three years later, published a Green Paper: Towards Effective Enforcement which included some of the recommendations contained in Professor Jack Beatson’s Independent Review of Bailiff Law. The Green Paper proposed that there should be a single piece of legislation governing the seizure of goods, a new fee structure, and.... a system to regulate all bailiffs. In 2002, the NSEA where introduced and were a set of minimum standards with which all bailiffs were expected to comply and was introduced as a “stopgap” measure in the absence of any new legislation.
However, compliance with the standards is not monitored and they do not include any complaints or appeals procedures or provide any accessible means of redress.
The following year, the government published a White Paper; Effective Enforcement, which followed the Green Paper in proposing a complete reform of bailiff law and a new unitary system of regulation, powers and fees.
Finally, on 25th July 2006, the government published a draft Tribunals Courts and Enforcement Bill which included a single procedure for taking control of goods. However, proposals to regulate the activities of bailiffs were shelved for the time being.
At around the time that the NSEA was introduced in 2003, the Office of Fair Trading introduced their Debt Collection Guidance. Unlike the Ministry of Justice, the OFT revised and updated their guidance in 2006 and; in March 2011 issued a Consultation on proposed changes to the guidance. This consultation ran for the statutory 12 weeks and during this time, the OFT also held consultation workshops with stakeholders. There were 65 responses to the Consultation and the revised and greatly improved Debt Collection Guidance was published in November 2011. It is interesting to note that the 6 new sentences added to the revised NSEA are copied almost word for word from the new Debt Collection Guidance!!!
Since the release of the revised NSEA there have been many complaints from both the enforcement and advice sectors that they had not been consulted on the proposed changes and it would seem that MOJ have realised this mistake and it is pleasing to note that under Chapter 3 of the Consultation they are seeking views from the public on proposed amendments.
The OFT’s Debt Collection Guidance consists of 63 pages and is aimed at all businesses engaged in the recovery of consumer credit debts. The vast majority of enforcement work by certificated bailiffs is carried out on behalf of the public sector. It is a shame that the Ministry of Justice do not consider that those collecting government debts should be subject to similar guidance as those enforcing consumer credit debts!!
The country is in the worst recession in modern times and families are really struggling to make ends meet and today; we are hearing that thousands of mortgage holders face significant rises in their monthly payments as two banks increase their interest rates. Last year, local authorities issued over 3 million Liability Orders against debtors who had fallen into arrears with paying their council tax. I would have hoped that the updated NSEA would have provided further provisions from the new OFT’s Debt Collection Guidance and by way of example; some or all of the following could have been included.
- Not putting undue pressure on debtors or relevant third parties.
- Not pressurising debtors to take on further borrowing.
- Not pressurising a debtor to make unreasonably large repayments when to do so, would have an adverse impact on the debtor's financial circumstances.
- Not visiting a debtor at a time when it is understood or suspected that he is, or may be, particularly vulnerable........for example; when a doctor’s certificate has been provided stating that the debtor is ill.
- Not leaving the debtor's property when it becomes apparent that he is unduly distressed or appears as if he may be vulnerable.
- Visiting debtors at potentially inappropriate locations....for example, at the debtor's place of work or at a hospital where a debtor is a patient.
If the government really wanted to convince the public that they are committed to protecting debtors, why did they consider that it was necessary....at this present time.... to amend the NSEA to allow a bailiff to visit a debtor on Boxing Day (and other bank holidays)?
In addition to updating the NSEA, the government also updated the information on the Direct.gov website. Of great importance is the revised Form EX345 where you will see that MoJ are advising debtors that they could be at risk of having a costs order imposed against them in the event of a court rejecting a Form 4 Complaint against a certificated bailiff!!
Chapter 3 of the Consultation paper is entitled: Non Regulatory Options and under this chapter, the subject of the National Standards for Enforcement Agents is addressed. Although the NSEA are a voluntary code, the government are proposing that some elements of the NSEA would be made legally binding under Chapter 4 (Clarifying the Law). These include the following categories:
- Times and hours
- Exempt goods
- Protection of children (under 16);
- Notices and warning letters
- Certification
Question 2 is seeking views as to whether you consider the existing law and the revised National Standards for Enforcement Agents is sufficient to address the problems that have been identified in the Consultation or whether you consider that there is still a need for further Government intervention as set out in the remainder of the paper.
If changes are to be made to the National Standards for Enforcement Agents it is important that the public make their views known.
Thank you for taking the time to read this Newsletter. A further newsletter regarding Chapter 4 of the consultation paper will be issued next week.
Tomtubby
Consumer Action Group intends to respond formally to the consultation paper in May and in doing so will be taking into consideration comments made by the public on the forum.
There is a new forum to discuss the consultation paper and at present, there six sub-forums as follows:
There will not be another opportunity to have good bailiff law and to protect vulnerable debtors from aggressive bailiffs and this consultation will give the public the opportunity to influence change.
You can submit your own response to the consultation on-line HERE
If you want more help, advice or even just some moral support then come to The Consumer Action Group website where we offer help on pretty well every consumer problem COMPLETELY FREE.
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