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Memorandum submitted by MENAI (TRI 16)
Tribunals Courts & Enforcement Bill - Part 3
I am the managing director of a fairly small bailiff company operating in Wales collecting on average some £1.4M of local taxes and penalties annually for public bodies. I am a Sheriffs Officer and Certificated Bailiff, a Past President of the Enforcement Services Association and for many years have worked closely with the Department for Constitutional Affairs on various enforcement related issues, not least the enforcement review which led to the White Paper, Effective Enforcement.
I am a founder member of the Enforcement Law Reform Group, a member of Union Internationale des Huissiers de Justice et Officiers Judiciaires (International Union of Judicial Officers - formerly a member of its Permanent Council) and hold various professional memberships including the Institute of Revenues, Rating & Valuation, the Institute of Credit Management, the Chartered Management Institute, the Association of British Investigators, the Institute for Parking Professionals, the British Parking Association and the British Institute of International and Comparative Law.
I served on SITO's Steering Group for the Civil Enforcement Officer NVQIII and was a member of the Department for Constitutional Affair's Warrant Execution Liaison Group that focused on the implementation of enforcement matters under the Access to Justice Act. I also participated in justices' training and drafted the first inter-agency protocols for the execution of arrest warrants by Approved Enforcement Agencies.
I have worked with DCA, the Foreign Office and the British Council regarding various enforcement projects including enforcement in Russia and other former soviet states and produced several published Papers on Enforcement, including 'A Model Fee Scale for the 21st Century' and 'Misconduct & Unethical Behaviour'.
Most recently, through direct lobbying of the Home Secretary and other Ministers, I publicised serious inconsistencies in the Fines Collection Regulations (FCR) and the SIA licensing requirements for bailiffs which resulted in amendments to the FCR and the introduction of the Private Security Industry Act 2001 (Amendment to Schedule 2) Order 2006.
I have set out my credentials in some detail to demonstrate I have a clear understanding of the issues at hand, gained from over twenty five years of practical experience. Further that I have an even balance of professional, technical and commercial rationale.
I am aware that the professional associations representing bailiffs will have submitted similar information for the Committee to consider during its scrutiny of the Bill and while I have supported and contributed to such submissions on a professional basis, I wish to make my own points from an entirely commercial point of view and suggest the likely impact on how I and other bailiffs might deliver enforcement services in light of certain proposals.
Accordingly, the Committee may wish to take account of the more practicable consequences of legislative change in deliberating the Bill.
As a prime example, I have set out how bailiffs are likely to respond commercially to the proposals in Schedule 12, paragraphs 17-19 and specifically on forced re-entry.
Currently, where goods are seized and left on premises under a walking possession agreement for the debtor's convenience, bailiffs can, when necessary, force re-entry to recover the seized goods. The right to do so is used sparingly to say the least.
Under the new procedure outlined in the Bill, this right will only apply in respect of commercial premises for county court bailiffs, High Court Enforcement Officers and the enforcement of national taxes. In all other cases, bailiffs will have to apply for specific authority to force re-entry to remove previously seized goods from both domestic and commercial property. This means all 'private' bailiffs dealing with council tax, business rates and parking penalties.
It's not just the fact of having to obtain a warrant to actually remove goods subject to a controlled goods agreement when an arrangement falls down but the fact that debtors will know we will have to obtain a warrant and will, no doubt, use this to frustrate attempts to remove on default of payment. This will of course add to their final cost as it will involve further visits.
The likely outcome is that bailiffs will avoid the potential for difficult and protracted re-entry by removing goods in the first instance. However, DCA have now indicated that Regulation will require that goods can only be removed in the presence of the debtor and this will provide further means for debtors to frustrate and protract the enforcement process.
It is important to bear in mind that actual removal of goods currently occurs in a very small fraction of cases (according to CIPFA on council tax, less than a quarter of one percent) and it is the viable threat of the sanction, rather than the deed itself which promotes compliance.
If the Bill proceeds as currently drafted in this respect instances of goods being removed will escalate disproportionately, as will the associated costs to debtors.
There are many more issues within the Bill which have clearly not been thought through in practical terms and the best way forward would be to remove Part 3 altogether and begin again applying more reason and care to the potential outcomes.
I appreciate that the Committee will not wish to spend hours reading each of the issues I feel are of great import as others will have made the same points I am sure. But I would like to close this letter by making one final important point.
The lack of any formal regulation for bailiffs is an outrage considering the vast amount of work my colleagues and I undertook with DCA over many years to work towards an effective regulatory system. The publication of a Consultation Document to regulate enforcement agents and its timing shows that DCA is in some disarray on the issues and is evidence that, together with Part 3 of the Bill, the combined proposals are but a knee jerk political reaction to recent bad press on bailiff and alleged mass abuse.
The media reports have been exaggerated beyond belief and I refer the Committee to my [attached] letter of complaint to Citizens Advice regarding their much publicized statement of 5 March 2007 and also to my recent statement and question to Peter Tutton of Citizens Advice at a meeting of the Enforcement Law Reform Group. Neither has been answered at this time. I trust the content will assure the Committee that the media hype is just that.
March 2007
Appendix A
Dear Sir/Madam
Public Statement by Citizens Advice 5 March 2007 "Abuse of powers by bailiffs set to get much worse, Citizens Advice warns."
I refer to the above statement made by Citizens Advice on 5th March and subsequently taken up by the media and address my complaint regarding its content in relation to the stated Objects of Citizens Advice which claim it is "committed to promoting equality and diversity, to preventing prejudice and discrimination, to ensuring equal access to and promoting good relations between all sections of the community."
As a Founder Member of the Enforcement Law Reform Group of which Citizens Advice is also a member, and as a practising bailiff and managing director a bailiff company, I am deeply offended and outraged that Citizens Advice fails on both the above underlined claims to engage in reasonable and civilized debate but, instead, chooses to use inaccurate and sensationalist rhetoric which is clearly prejudicial and discriminatory and does nothing to promote 'good relations between all sections of the community'.
For example, in the statement, Citizens Advice claims to have analysed 500 cases and found that bailiffs were guilty of harassment and intimidation in 64% of them. What is probably more accurate is that in 64% of these analysed cases debtors complained that they felt harassed or intimidated. The statement presented these figures as if they were fully investigated and upheld complaints, which I seriously doubt.
There is no indication that any of these claims were proven in any civil case or even through complaints to professional associations. Like previous reports from Citizens Advice, the 'evidence' is probably anecdotal and has not been verified, yet it condemns an entire profession.
If a bailiff threatens to seize goods under a court order, is that harassment, intimidation or a fair warning of the inevitable next step in a legal process. I understand those debtors may have felt harassed and intimidated but that does not necessarily mean the bailiff was 'guilty' of doing anything wrong.
Even if the 320 cases were properly investigated and upheld, that relates to just .008% of the estimated 4,000,000 matters dealt with by bailiffs each year. A spin doctor might suggest that in 99.99% of cases bailiffs were compliant; hardly evidence of "an appalling track record".
Importantly, the media and even MPs took this statement to be fact and have been seriously misled. The media went on to exaggerate the claim by stating that these percentage claims applied to all bailiffs and not just to those in a select batch of 500 cases. As a prime example, the Sun quoted, "But Citizens Advice issued its warning - as it revealed almost two-thirds of bailiffs are guilty of harassment or intimidation."
While I appreciate that Citizens Advice cannot be held responsible for subsequent misrepresentations, it is responsible for setting out an initial falsehood. The statement specifically claims that 64% of bailiffs were 'guilty' of harassment and intimidation. The word 'guilty' implies that there has been a reasonable process to establish the facts and a conclusion reached which resolves that outcome. Perhaps you could provide evidence of such a process in the 64% of cases where Citizens Advice apparently and fairly established such guilt?
Furthermore and specifically, your Martin Broad, manager of Bournemouth Citizens Advice, was quoted as saying: "We are concerned about these proposals because we already receive complaints from local clients who have been harassed by bailiffs. Many private bailiffs already act almost as a law unto themselves with devastating effects on people's lives. Intimidation, harassment and excessive fee charging are commonplace, driving already vulnerable people deeper into poverty and debt." This statement clearly suggest the 'many' bailiffs yet Citizens Advice has no concrete proof of this beyond the anecdotal evidence of only those people who attend its bureaux. Does Citizens Advice have evidence regarding the entire 4,000,000 cases dealt with each year which would confirm the 'many' rather than perhaps, the 'few'? It also states that intimidation, harassment and excessive fee charging are commonplace. Commonplace suggests this is the 'norm', the 'usual', whereas there is no evidence to support this.
Moving on, the statement by its content clearly refers to 'private bailiffs' and not county court bailiffs or even High Court Enforcement Officers. Yet, the statement notes, ..... the Bill will extend to all bailiffs the power to forcibly enter domestic premises to enforce debts, including consumer credit debts such as credit card bills."
Again this is at best misleading and at worst a deliberate attempt to cause undue concern among the public. The fact is that consumer debt (i.e. credit card debt) is exclusively dealt with by [state employed] county court bailiffs and High Court Enforcement Officers. Private bailiffs mainly deal with debt arising from unpaid fines, council tax, business rates, central taxes and parking penalties. As a result of this statement, the media repeatedly headlined this aspect using such phrases as, "Bailiffs could soon have the power to legally break into peoples' homes and seize their belongings over an unpaid credit card bill, a national charity has warned".
In any event, forced entry for consumer debts will only be permitted with specific judicial authority. A point not made by the statement.
To conclude, my complaint, in summary, is that:
1. Citizens Advice issued an inaccurate and misleading statement which is prejudicial to an entire profession - the bailiff profession - and which discriminates against all bailiffs by stating that "Intimidation, harassment and excessive fee charging by bailiffs are commonplace," when there is no evidence to support such a statement.
2. Citizens Advice, instead of promoting good relations between all sections of the community, has sought and in many ways succeeded in damaging relations between debtors (and creditors) and the bailiff profession - all members of the community, and
3. that accordingly, it has breached its stated objects.
On the second point, I would add that having worked closely with members of Citizens Advice and advising debtors through written material and my web site, to use the services it offers, this statement has destroyed my long held respect for what I previously considered to be a valuable and integral part of the enforcement process.
As a closing aside, Citizens Advice likes to pick out and publish examples of what appear, without investigation, to be horrific examples of abuse by bailiffs. Conversely, the bailiff associations do not publish what are proven police investigated instances of violence and abuse towards bailiffs by debtors; the sort of actions likely to be fuelled by the recent statements from Citizens Advice.
In the past 12 months my staff (in a relatively small company), while collecting £1.4M of unpaid fines, taxes and penalties, have been attacked and injured by debtors wielding baseball bats, hammers, knives, machetes, iron bars and axes and have been spat on and verbally abused simply for executing court warrants according to the law and without using intimidation, harassment or charging excessive fees.
I would appreciate your response to this complaint as a matter of urgency.
Appendix B
Note to ELRG group 14 March 2007 - Re: Citizens Advice
I have but a single question for Peter but before asking it I would like to point out a few more issues which expand on my letter of complaint submitted to Citizens Advice on 9 March, for which I have yet to receive an acknowledgment.
It seems to me that the Citizens Advice PR machine is a provocative animal and has scant regard for the consequences of its statements despite its stated aim to "exercise a responsible influence on the development of social policies and services, both locally and nationally".
In all the statements it has made over the years regarding bailiffs, the general theme is that all bailiffs are bad and all debtors are vulnerable. Neither notion can seriously be considered as a true reflection of the situation.
If Citizens Advice is to be accepted as a valid member of the ELRG which seeks to reform enforcement law by reason and constructive participation, it cannot continue to issue sensationalist misinformation; it must consider a clear perspective of the real issues and behave accordingly.
As a final example of how Citizens Advice use information for sensationalist publicity, in its Evidence Journal of September 2006 on the campaign, 'Putting Bailiffs on The Spot', Peter wrote an article which discussed evidence of bad bailiff practice and centered on 90,000 enquiries regarding council tax.
The article noted that in 2005/06 just under 90,000 'enquiries' were dealt with by CAB in relation to council tax and that 'some' bureaux reported that one in ten of these enquiries related to complaints of [bailiff] harassment.
First, harassment is undefined in these matters and clearly bailiffs seeking to execute a warrant under a liability order cannot be guilty of harassment simply for attending and re-attending when a debtor seeks to avoid facing the issue, as if often the case.
That aside, Peter's article notes that 'some' bureaux reported this one in ten ratio. Some, I presume, means a few as opposed to 'many', or 'most'. Allowing that perhaps half the bureaux reported this then perhaps 4,500 complaints were received. But, were they properly investigated? How many were dismissed and how many were upheld?
In the unlikely event that all these complaints were investigated and upheld this would amount to a sixth of one percent (0.15%) of the estimated * three million liability orders passed to bailiffs in the same year. It also means that the 90,000 'enquiries' represent just three percent of the liability orders for council tax passed to bailiffs. Of this, some of these enquiries may well have been prompted by bailiff companies advising debtors to seek independent advice from Citizens Advice as my company does and as, I know, do many others.
Accordingly, I cannot see how, on this basis, Citizens Advice can justify the irresponsible statements made in relation to so called 'widespread' malpractice in the bailiff profession.
My Question to Peter is this: Why did Citizens Advice join a group aimed at reforming enforcement law through meaningful trilateral dialogue when it apparently has no concept of the words, 'responsible influence'?
* my estimate based on CIPFA reports for 04/05 orders from 52% of local authorities.
NB: CIPFA reports that only 0.25% of cases went to full removal. |