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This is a House of Commons Committee report with recommendations to the Government. The Government has two months to respond.
Date Published: 11 April 2019
This is the full report, read the report summary
1. Bailiffs (also known as enforcement agents)1 enforce civil court orders for the repayment of debt. This work must be carried out responsibly and fairly, balancing the rights and obligations of creditors (the person or organisation to whom the money is owed) and debtors (the person who owes the money). It is especially important that the system protects vulnerable people and that already stressful situations are not made more difficult.
2. Last year, the Committee became concerned about a rise in complaints about the behaviour of bailiffs recorded by debt advice charities. Members were also concerned about people who they had met in their constituency surgeries, who reported bad experiences with bailiffs who had visited their homes.
3. Worrying cases were raised in a Westminster Hall debate on Bailiff Regulatory Reform. MPs gave examples such as a vulnerable constituent having serious health conditions ignored and being threatened with prison, and an elderly constituent being wrongly forced to pay the debt of her adult son.2
4. The Ministry of Justice (MOJ) carried out reforms of the enforcement system in 2014, aimed at making the system fairer and more efficient. These reforms aimed to curb bad practice, but the complaints continue. We therefore launched an inquiry into the enforcement of debt by bailiffs, with a focus on whether the reforms had worked and what more could be done.
5. The Ministry of Justice carried out its own call for evidence between November 2018 and February 2019,3 seeking detailed evidence on subjects including: the treatment of debtors, the complaints processes and whether further regulation is needed. Our inquiry sits alongside that.
6. The MOJ’s call for evidence is welcome and we look forward to seeing a summary of the responses. However, we are surprised that it took so long for the MOJ to open the call for evidence, given that it was announced in April 2018.4 Similarly we are disappointed that it took so long for the MOJ to publish its One Year review of the 2014 reforms,5 given that the fieldwork was carried out in 2015 but the research not published until April 2018.
7. We launched this short inquiry on 14 December 2018, with the following terms of reference:
8. The terms of reference are restricted to issues within the remit of the Ministry of Justice. We did not take evidence, for example, on whether bailiffs are over-used and whether local authorities should take alternative approaches to the collection of debt. We did however, note the conclusions of the Treasury Committee last year that “arrears to local authorities are growing” and that “these debts are often pursued overzealously and with routine recourse to bailiffs”.6 Witnesses to our inquiry told us that Council Tax reforms7 and the Welfare Reform Act8 had had an impact on the number of people owing money to local authorities, and it was suggested that therefore local authorities are passing on more debts to bailiffs than before.9 Many people are also affected by the introduction of new road pricing (eg. Mersey Gateway, Dartford Crossing) and Low Emission Zone rollouts.10 This makes it especially important that, where bailiffs are used as an end resort, such enforcement is carried out fairly.
9. We held two oral evidence sessions on 15 January and 26 February 2019, where we heard from debt advice charities, bailiffs, local authorities and other experts in the field. We did not issue a call for written evidence (to avoid duplication with the MOJ call) but where it was supplied to us and clearly addressed the terms of reference for the inquiry, we reported it to the House for publication. We also noted a small number of individual cases which were brought to our attention. We are very grateful to all those who shared their views with us.
10. We will seek to question the responsible Minister in the second half of 2019, after the MOJ has agreed its response to its call for evidence. Since this is such an important issue, we welcome the Department’s commitment to put any prospective policy changes out to public consultation, in order to clarify the full impacts on business, consumers and the third sector.11
11. A ‘bailiff’ is a person who is authorised to collect a particular type of debt on behalf of a creditor. They may do this by asking for payment of the debt, whether in whole or through a repayment plan, or (much less commonly) by seizing the debtor’s goods and selling these at auction to raise the money needed to repay the debt and cover their fees. Their authority to collect debt comes from a warrant or a writ of control, issued by a court.
12. The law relating to bailiffs is complex, not least because there are different types, including:
13. All civil enforcement agents are individually certificated by the County Court and registered with the MOJ.14 The most frequent use of bailiffs is to collect local authority Council Tax debts, followed by local authority parking debts.15
14. There is no formal regulatory body for bailiffs, who may instead choose to join trade associations who offer guidance on legislation, provide training and deal with complaints. Civil enforcement agents may join the Civil Enforcement Association (CIVEA) or the Certificated Enforcement Agent Association (CEAA). High Court Enforcement Officers are required to be members of their trade association (the High Court Enforcement Officers Association).
15. The Government introduced reforms in 2014, which implemented provisions in the Tribunals, Courts and Enforcement Act 2007. These reforms aimed to:
16. Box 1 below sets out the contents of the reforms, which came into force in April 2014. This new legislative package is supported by National Standards on enforcement, also published in 2014. These National Standards were designed by the Government as a minimum standard for bailiffs, the enforcement agencies that employ them and the creditors that use their services. The standards focus on the professionalism of bailiffs and the expectation that bailiffs will at all times act fairly towards the debtor. However, these standards are not legally binding and have not been updated in the last five years.
Box 1: Reforms to enforcement of debt (2014)
The MOJ set out in an Explanatory Memorandum its intention to review, the level of fees annually, and to uplift the baseline fees with reference to the most recent September Consumer Price Index (CPI) figure.
17. The Ministry of Justice carried out its own One Year review of the 2014 reforms, based on data analysis and gathering views from key stakeholders. The review findings were broadly positive:
All stakeholders agreed that the reforms have provided transparency and consistency in the enforcement process, where this was previously lacking […] By clarifying what was considered unacceptable enforcement behaviour and including advice sector contact details on enforcement letters, the reforms have provided greater transparency over debtor rights and how to complain.
18. However, the review went on to note that:
Data provided by the advice sector show that some debtors and debt advisors perceive that aggressive behaviour is still happening in practice, and while it is not realistic to expect this to have been eradicated altogether, the Ministry of Justice take the concerns expressed by the advice sector feedback seriously and will pay close attention to the level and nature of complaints as the reforms bed in further.17
19. The research for that report was carried out in 2015, one year after the reforms were brought in. We looked to see if the picture had changed by the beginning of 2019, nearly five years after the reforms were brought in.
20. Witnesses from the enforcement agent industry remained strongly supportive of the 2014 reforms, calling them “a great success”.18 They cited for example: increased clarity in what fees could be charged;19 the increase in settlement by contacting the debtor by phone or in writing before making a visit;20 and the introduction of training requirements for certification.21 Tracey Stone, director of a small enforcement company, told us: “[Before 2014] different authorities charged completely different things. For that purpose, the reforms brought in a lot of clarity. Having one charge made it a lot easier and reduced a lot of the complaints that came through.”22 Andrew Wilson, Chair of the High Court Enforcement Officers Association, added: “We have found considerable improvement, mainly because of the greater transparency in the way the process works.”23
21. We also took some evidence from local authorities who use bailiffs to recover their debts. Again, the views were positive. David Platts, who is responsible for the collection of council tax and business rates at Stratford-on-Avon District Council, told us that he welcomed the reforms.24 Barrie Minney, founder of the Local Authority Civil Enforcement Forum, added “I think it has been a success”.25
22. However, evidence from debt advice charities was much less positive. Joanna Elson from the Money Advice Trust told us that: “despite some improvements due to the 2014 reforms [such as clearer rules], our three charities [Money Advice Trust, StepChange, Citizens Advice] regularly see the regulations being contravened”,26 especially in the following areas: “bailiffs will not accept affordable repayment offers […] they seize goods inappropriately […] and they fail to take vulnerable circumstances into account.”27
23. Peter Tutton from StepChange debt charity agreed. He was concerned that the new regulations “made some things better, but they did not deal with the fundamental issues, which were control over the conduct of firms, the way the incentives in the industry work and properly dealing with the vulnerability of the people they were dealing with.”28 Joe Lane from Citizens Advice added: “The rules that were created in the 2014 reforms were a step in the right direction, but they are ineffective because they are not properly enforced.”29
24. It is difficult to obtain precise and reliable data about the number of times that regulations are contravened. This is because complainants are directed to a plethora of places, with no single ombudsman or regulator taking oversight of the complaints system.
25. The Government website .gov.uk30 states that “You should first complain to the company the bailiff works for or the people you owe money to. You may also be able to complain to the bailiff’s trade association”. It also provides a link to complain to a court if you are complaining about a civilian enforcement officer. The website does not mention the option of complaining to an ombudsman like the Local Government and Social Care Ombudsman, nor does it explain the sequence in which a complaint should be escalated. There is no mention of costs (in almost every case it is free to complain about a bailiff, except for certain court action).
26. The enforcement agents told us that all Civil Enforcement Association (CIVEA) members have a formal complaints procedure,31 and that these procedures are “very accessible” and “robust”.32 They told us that “it is very easy for people to make a complaint”33 and that the number of complaints received (especially justified complaints) was proportionately small (“exceptionally low”34). For example, Jacobs, an enforcement company currently working with 165 Local Authorities throughout England and Wales, told us that they processed 275,000 cases last year, and had only 373 complaints to either the Council or themselves; 24 complaints were partly and 24 fully justified.35 This is a strikingly low number.
27. Where a complainant is dissatisfied with the response from the enforcement agency, they may refer it upwards to one of the industry associations, of which there are “three operating within the sector, each with different procedures and priorities”:36 the Civil Enforcement Association (CIVEA), the High Court Enforcement Officers Association (HCEOA) and the Certificated Enforcement Agents Association (CEEA) (which represents individual enforcement agents rather than companies). These three associations all gave us evidence that they received only very small numbers of complaints:
28. If the enforcement agent is employed by, or operating on behalf of, a local authority, the complainant may address their complaint to the relevant local authority. The local authority will then ask the enforcement agent for their evidence relating to the case, such as recordings of phone calls or videos of any visits.41 While we did not take detailed evidence from local authorities, the evidence which we did gain suggested that there had been a decrease in complaints to them about bailiffs since the 2014 reforms. The Local Authority Civil Enforcement Forum conducted a straw poll of its 1,000 members, which suggested that “complaints [to local authorities about the actions of enforcement agents] were not increasing; in fact they have definitely gone down”.42 David Platts from Stratford-on-Avon District Council concurred, citing very small numbers of complaints to the District Council: “Over the previous five-year period, we had around 10,000 cases referred [to enforcement agents], of which there were 12 complaints [of which only one was upheld]”.43
29. If the complainant is still dissatisfied about the enforcement of a local authority debt such as Council Tax or parking, they may complain to the Local Government and Social Care Ombudsman (LGSCO). The LGSCO has jurisdiction to investigate such complaints whether they relate to ‘in house’ bailiffs who are directly employed by local authorities or ‘contracted out’ bailiffs (as they are performing a local authority function).44 They are able to investigate whether there was a fault in the way the local authority used the enforcement agents, as well as whether there was fault in the actions of the agents themselves.45
30. Andrew Hobley from the LGSCO told us that “Pre and post reform, there was a drop in the number of complaints. It is not enormous, but what has changed is the number of upheld complaints that we have [which have gone down], particularly around the area of costs.”46
31. The LGSCO reported that, since the introduction of the reforms,47 they made 132 decisions involving enforcement action under the 2007 legislation which found fault in the actions of the local authority or their enforcement agents; in 27 percent of cases the enforcement agent was at fault. In the other cases, the local authority was at fault, rather than their agents.48 These are clearly very small numbers.
32. A final route to complain would be via court action. The court may rule to order goods to be returned, damages to be paid and/ or for an agent’s certificate to be suspended or cancelled. However, Citizens Advice note with concern that only 56 complaints have been registered through the courts in the last four years.49 They believe that this is due to the perceived cost and accessibility of making a complaint to court,50 describing it as an “intimidating prospect”.51 On the other hand, CIVEA argue that the complaints level is so low because “the rules are so prescriptive that you have to have a strong case that the rule has been breached”.52
33. We were struck by the massive discrepancy between the figures on complaints to bailiffs, industry associations, local authorities, LGSCO and the courts, compared with the figures quoted by debt advice charities. Citizens Advice, for example, claimed that 2.2 million people had been personally contacted by bailiffs in the last two years and that 39% of these- or 850,000 people - were seeing bailiffs break the rules.53 Examples included: telling people that they can break entry into their house when they did not have the right to do that, or threatening to take control of exempt goods (goods that belong to a third party or goods which are essential household items or things which people need for their trade).54 These would be clear causes for complaint.
34. We tried to get to the bottom of this. CIVEA told us that: “The cases that are recorded as complaints [are] often simply inquiries for advice and not defined complaints”. They added that, where complaints are made, these are “more often due to misunderstanding of the regulations than attributed to aggressive collection practices.”55 Carole Kenney, from Phoenix (a large company specialising in the enforcement and collection of local authority debt) suggested: “When debt advice agencies use the word complaints, I think they are referring to inquiries”.56 The High Court Enforcement Officers Association stated that “There is no doubt that the Advice Sector has received more enquiries (which are not necessarily complaints) from debtors since April 2014… [one reason for which is that] the prescribed forms under the Taking Control of Goods Procedure all carry details of the main Advice Sector charities, signposting judgment debtors to take advice.”57
35. We asked Citizens Advice directly about these claims:
Chair: Are you able in all these surveys to make a distinction between inquiries from people concerned about the system—’I have had a letter,’ or something like that—and a specific complaint about conduct and breach of rules?
Joe Lane (Citizens Advice): In each individual survey, we endeavour to do that. Obviously, as with any survey, there is always a margin of error. You aim to get your figures in the right ballpark; you are not doing it to the precise number.58
36. The Money Advice Trust explained that:
The high number of problems with bailiffs reported to debt advice agencies has not translated into a high number of formal complaints, which we would suggest is a systemic problem with complaints processes rather than a lack of grounds for complaint. Our clients in debt are very likely to be in vulnerable circumstances and dealing with many competing difficulties in their lives. They are not necessarily in the best place to make formal complaints, especially where there is no clear complaints mechanism or defined outcome.59
37. The three debt advice charities who gave oral evidence to us (Citizens Advice, StepChange and Money Advice Trust) were all confident that the evidence base was “very strong” that regulations were regularly being contravened and that there was a systematic problem with enforcement which urgently needed to be addressed.60 Citizens Advice told us that:
Bailiffs are used millions of times each year, and we [the debt advice sector] deal with tens of thousands of complaints about bailiff behaviour, but the process to hold bailiffs to account is completely inaccessible to the individuals affected.61
38. Complaints are important and must be investigated properly and learned from—they should be encouraged. But the existing complaints process is fragmented and hard to navigate. This is especially problematic given that debtors are more likely to be vulnerable and dealing with multiple difficulties in their lives, such as ill health or unemployment.
39. There is a gulf between the reports by debt advice charities about numbers of complaints and the reports by bailiff companies, industry associations and the LGSCO. While there may be many reasons for this, we conclude that a more clearly defined and independent complaints process would give important reassurance that all complaints will be fairly and properly investigated. It would also enable much greater transparency about real numbers of justified complaints.
40. A coalition of 11 charities concerned with poverty and debt have argued strongly that there should be a free, transparent and accessible complaints procedure which would enable people in debt to complain about individual bailiffs or bailiff firms or both. They suggest that there should be two stages to this complaints procedure, with complaints made first to the firm concerned and then to an independent body if the complaint is not resolved at the first stage.62
41. CIVEA concurred:
there is a case for a new regulatory body to adjudicate on complaints cases. There are various complaints handling processes covering the different elements of enforcement, but there may be a requirement for a higher level of independence. CIVEA’s view is that it would be more effective for this to be an industry driven solution and a regulator would not necessarily make a good adjudicator.63
42. We also found other stakeholders in agreement, for example, the Certificated Enforcement Agents Association said that they would “welcome an independent complaints procedure providing it was fair on both [sides].”64
43. We recommend that there should be an independent complaints body, to which all complaints about bailiffs should be escalated if the complainant has exhausted local complaints procedures (ie. those of the organisation for which the bailiff was working). The complaints process should be very clearly set out, and have as few levels as possible so that it is easy to navigate.
44. The Local Government and Social Care Ombudsman already plays an important role as the majority of work sent to bailiffs relates to local authority debt,65 and therefore falls under its jurisdiction.66
45. Witnesses told us how important the role of local authorities is in good enforcement. CIVEA told us that “while enforcement agent firms can have their own conversations, ultimately, they have to act on the instructions of the local authorities. The local authorities are their clients and they dictate the terms of engagement in everything they do, including repayment plans.”67
46. Importantly, the LGSCO can take a holistic approach to a complaint (ie disentangle whether the bailiff or the local authority, or both, is at fault). This is essential as witnesses told us that many complaints about enforcement agents also involved the actions of the creditor: for example, it is the local authority who will, under the terms of a service level agreement, provide the enforcement company with information about the case, decide what to do about cases relating to vulnerable debtors and determine what payment plans are acceptable.68 These are often the places where debt advice agencies told us the complaints lie.
47. The LGSCO told us:
It will be important that any future reform takes account of existing routes to redress including that there already is a clear route to the LGSCO for complaints about local authorities and the enforcement agents they use. Published figures suggest that at least 90 percent of cases passed to enforcement agents already fall within our jurisdiction. Our understanding is [in] most of the other cases, the enforcement agent is acting as an officer of the court. It is our view that to include the investigation of complaints about bailiffs within the role of an independent regulator risks complicating the route to redress for members of the public and creating confusion about who to approach when they have been let down.69
48. The LGSCO’s written evidence also draws attention to the draft Public Service Ombudsman Bill, published in December 2016 and awaiting pre-legislative scrutiny. This Bill would create a new Ombudsman for UK reserved matters and public services in England, which would cover complaints against central government and local authority creditors. The LGSCO told us that this body, in their view, “would cover the actions of the Courts Service—and so any enforcement agents employed by the court service”.70 This could bring all enforcement agents into scope of the new Ombudsmen, not just those civil enforcement agents enforcing local authority debts.
49. However, we do not know when or if this Public Service Ombudsman might start to operate. The Public Administration and Constitutional Affairs Committee said in April 2018 that:
the continuing uncertainty in progressing the Bill to introduce the Public Service Ombudsman has an adverse impact […] We, therefore, expect the Government to provide clarity about its intentions for pre-legislative scrutiny of the Bill, and about the timetable to implement this new legislation to allow the Parliamentary and Health Service Ombudsman and Local Government and Social Care Ombudsman to plan with some confidence.”71
The Government response pointed to the pressures of Brexit on Parliamentary time, and stated that “the draft Bill will be brought forward as and when such Parliamentary time is available.”72 This was nearly one year ago.
50. We recommend that the MOJ should, when deciding where to site the independent complaints function, take full account of the existing role of the Local Government and Social Care Ombudsman. It is particularly important as the Ombudsman has the ability to investigate how both the local authority and the enforcement agent acted, in order to ascertain where any fault may lie.
51. The MOJ must also take into account the opportunities afforded by the planned Public Service Ombudsman. However, we are concerned about the delay in introducing the legislation required to implement the Government proposals for this body. We add our voice to that of the Public Administration and Constitutional Affairs Committee in recommending that the Government should invite the House of Lords to join the House of Commons in setting up a joint committee to conduct pre-legislative scrutiny of the draft Public Service Ombudsman Bill as soon as possible.
52. The Certification of Enforcement Agents Regulations 2014 require individual civil enforcement agents to be certificated by a County Court, in order to be authorised to take control of goods anywhere in England and Wales. The judge must be satisfied that the applicant is a “fit and proper person” to hold a certificate, and that they “possess sufficient knowledge of the law and procedure relating to powers of enforcement by taking control of goods and of commercial rent arrears recovery to be competent to exercise those powers”. The certificate must be renewed every two years.
53. We heard that this “certification in the courts still leaves a lot to be desired” and that it was a “rubber-stamping exercise” with “no requirement for any CPD [Continuing Professional Development]”.73 John Kruse, an expert in bailiff law, told us:
Certification, with all due respect to county court judges and district judges, is not dedicated and it is not expert. Some district judges know about bailiff law. Most do not because there is no need for them ever to encounter it. At the same time, the regulation we have is very partial because it is solely regulation of an individual [ie the individual bailiff rather than the company which employs them].74
54. Peter Tutton, from StepChange, explained that the current system is effectively a licensing regime, in which individual bailiffs can have their certificate to practise taken away. He described this as “not very effective”.75 He argued that “unless you really get down to a regulator that has the powers and the tools to oversee and control conduct between firms and vulnerable people in financial difficulty, you will not achieve the aim of protecting people against excessive, disproportionate and harmful enforcement.”76
55. A coalition of 11 debt advice charities has argued strongly for a regulator.77 They point out that people who are contacted by bailiffs are more likely than average to be vulnerable. For example, the Money and Mental Health Policy Institute states that 45% of people in problem debt are also experiencing a mental health problem, and so may find it harder to understand the information a bailiff is telling them and to decide on a course of action. The Institute concludes: “In this situation, it is not appropriate to expect a person to understand what a bailiff can and cannot do, and to enforce their own rights. This makes significant improvements to the regulation of bailiffs to improve behaviour and ensure people are treated fairly an absolute necessity.”78
56. Comparison was frequently drawn with other sectors. For example Stepchange said: “In a world where most sectors, such as water, energy and financial services, have introduced an independent watchdog to stand against bad practice and drive improvement of standards, the lack of accountability in the bailiff industry is a complete anomaly.”79 We noted that, where an enforcement agency also carries out debt collection, that part of its work is regulated by the Financial Conduct Authority.
57. We heard general support from other witnesses, including from the enforcement industry.80 CIVEA told us that “in principle, yes, we are not against [regulation].”81 We heard that large enforcement companies such as Jacobs,82 Bristow & Sutor83 and Phoenix84 were open to or supportive of the idea, although there was a view that it should be designed with the enforcement sector.85 We did hear some notes of caution from the enforcement sector that the regulator might not add much,86 or that it would be hampered if it could not regulate the creditors (eg. the local authorities instructing the enforcement agents).87
58. There were a small number of exceptions, notably the Certificated Enforcement Agents Association, which represents individual agents (rather than companies). The CEAA disputed the claim the sector is not regulated or self-regulated, arguing “We are regulated by statute. Therefore we are answerable to the Courts and the Judges—What is self-regulatory about that? […] we don’t believe that there is a need for an independent regulator due to being regulated by the Courts”.88 The High Court Enforcement Officers Association did not support the proposal, suggesting that they were “neutral about a regulator”.89
59. We asked those in support what such a regulator should do. The most important purpose was seen to be to regulate the enforcement agent industry by licensing practitioners and sanctioning poor practice. Citizens Advice argued that this would involve moving away from individual certification by the courts, towards regulation of firms as well as individuals.90 There was also a strong view that the regulator would have a role in terms of “draw[ing] out some best practice and consistent approaches.”91 and “preventing problems before they occur [by producing guidance and requiring firms to have practices and policies]”.92 This might particularly focus on good practice in relation to vulnerable people, such as people with mental health problems or people with low levels of literacy.
60. We received mixed views on whether the regulator and the complaints ombudsman should be the same body; the predominant view was that they should be separate but that information should be shared between them. The LGSCO said “it is important that there is clarity about who is responsible for regulation and who is responsible for resolving complaints” and that there should be “clear processes in place for sharing information and intelligence.”93
61. We did not hear a clear preference for where this responsibility for regulation should be sited, whether in a new or an existing regulator. We heard some arguments for it being added to the remit of an existing regulator, such as the Financial Conduct Authority94 or the Security Industry Authority.95 Marston Holdings, the largest provider of enforcement services to both local and central government, suggested an alternative, in which the model of their existing independent Advisory Group (currently engaged on a voluntary basis) could be expanded to oversee member companies across the industry and deal with complaints.96
62. The difficult question is how the regulator should be funded. Various ideas suggested included: requiring bailiff companies to make a contribution97 (although this might be harder for small companies, since it is not costed for in the fee regime98), redirecting the funding currently paid by individual enforcement agents to get certificated by the courts,99 and charging a fee to creditors.100 There is a particular need to consider the position of self-employed bailiffs.
63. We are surprised that bailiffs are apparently so under-regulated compared with other sectors, especially given that they deal with some of the most vulnerable people in society. It does not make sense for enforcement to be regulated only through the rubber-stamping of individuals through a court certification process. In our view, it would increase the reputation of the sector to have much stronger regulation.
64. Having said that, the enforcement industry is relatively small: about 2,500 civil enforcement agents and just over 40 High Court Enforcement Officers are registered with the MOJ. It is important that any new regulation function should be proportionate and not over burdensome, so as to reduce costs which might be passed on to the public purse.
65. We recommend that the Government establish a regulator for the enforcement agent industry, separate to the complaints body. The regulator should be able to stop unfit enforcement agents and companies from practising. It should have the power to set intermediate sanctions such as fines for poor behaviour. An appeal mechanism should be built in. This regulator should also work to change culture and raise standards (for example, by dissemination of good practice, owning and updating the National Standards, and supporting continuing professional development). It should work closely with the complaints body, for example, sharing information about good practice. The Ministry of Justice should consult widely on where this regulatory responsibility should sit, whether in an existing body or a new body, and how it should be funded.
66. We looked into whether the fee structure is working to encourage enforcement agents and debtors to settle at an early stage and to minimise the financial impact on debtors. Again, we received very mixed views on this.
67. The debt advice charities were of the strong view that the standardised fee structure was not working, and had not achieved the aim of encouraging enforcement agents to settle debts at an early stage with debtors.101 For example, StepChange told us that a quarter of people who had been visited by a bailiff tried to arrange repayment over the phone but found that the bailiff insisted on visiting their home to take payment [thus triggering the next stage of payment and increasing the debt by £235].102
68. However, the enforcement agents had more positive views about the impact of the new fee regime. In particular, they pointed to the new Compliance Stage, which they told us increased settlement by phone or in writing (ie, without a bailiff visit).103 Attention was also drawn to the single fee for all enforcement stage activity, meaning that civil enforcement agents no longer had an economic incentive to undertake more than one visit.104
69. Marston pointed out that “The 2014 introduction of a Compliance Stage now means that over 40% of all payments are generated without sending an agent at all (compared to 0% for council tax before 2014). Local authorities are setting increasing targets for recoveries at the Compliance Stage, and removing companies from their panels for failing to achieve these”.105
70. We did not take a large amount of evidence on the level of fees and the stages of recovery. We were however, encouraged to be told that removal of goods is now very rare (“a myth—we just do not see that”106): Marston told us that it occurred in less than 0.8% of cases.107 We would expect the MOJ to look closely at these statistics as part of their work to evaluate debt recovery rates.108
71. Joe Lane of Citizens Advice argued that a regulator, which would have oversight of company revenue and costs, should have the remit to set the fee structure.109 Peter Tutton of StepChange concurred: “It is absolutely incumbent on the Government to keep looking and making sure that those fees are set at the right level and are not excessive […] We would like a commitment from the MOJ that in the long run it would need to be the job of the regulator to do that economic analysis.”110
72. We welcome the MOJ’s work to evaluate debt recovery rates, since it is important that as much debt as possible is collected without expensive bailiff visits or the pain of the seizure and sale of personal goods. The fee structure also deserves close attention, since it has not been properly reviewed or updated since its introduction in 2014, despite the Government’s intention at the time to review annually in the light of CPI inflation. Given that these fees are paid by some of the poorest people in society, it is vital that the fees are proportionate.
73. We recommend that the new regulator regularly reviews and makes expert recommendations to the MOJ about the fixed fee structure set out in The Taking Control of Goods (Fees) Regulations 2014. Fees should be set as low as possible while ensuring the sustainability of the enforcement industry.
74. We found strong support for the use of body-worn cameras, described variously as “crucial”,111 “very useful”,112 “invaluable”,113 and “an excellent advance”.114 Carole Kenney from Phoenix told us that: “In all reputable organisations, enforcement agents have body-worn cameras [which allow any complaint to be easily proven or disproven].”115 David Platts told us that his District Council had procured an agreement with an enforcement agency based partly on the fact that bodycams were to be worn at all times by the agents.116
75. The LGSCO told us:
The availability of body-worn video camera evidence means we can make a firm ruling on complaints about the behaviour of the bailiffs, as opposed to relying on the unsupported statements of the parties involved. We have, in the period under consideration, not found fault with the agent’s behaviour in any case where there was video camera evidence available.117
76. There was strong support for making body-worn cameras mandatory: a typical response was that “use of this technology should be mandated […] as it serves to discourage unfounded complaints and is a vital tool in resolving questions and complaints quickly and unequivocally.”118 Russell Hamblin-Boone of CIVEA suggested that he would absolutely welcome this “from an adjudication point of view and a protection point of view”.119 CEEA stated: “[they] protect not only the agent, but the debtor as well”, reminding us that “our members go to work each day not knowing if they are going to be assaulted, abused”.120 While we heard that the IT burden was substantial and that there would be a need for specific guidance on how it should operate,121 there was clearly strong evidence that body-worn cameras are important in protecting the agent and debtor, raising standards in the industry and enabling complaints to be properly investigated.
77. Technology has moved on since the National Standards were produced in 2014. We were struck by the LGSCO’s evidence that they had not found fault with the agent’s behaviour in a single case where the enforcement agent was wearing a body- worn camera.
78. We recommend that body-worn cameras be mandatory for all enforcement agents visiting homes and businesses. We also recommend that the regulator produce good practice on their use.
1. Complaints are important and must be investigated properly and learned from—they should be encouraged. But the existing complaints process is fragmented and hard to navigate. This is especially problematic given that debtors are more likely to be vulnerable and dealing with multiple difficulties in their lives, such as ill health or unemployment. (Paragraph 38)
2. There is a gulf between the reports by debt advice charities about numbers of complaints and the reports by bailiff companies, industry associations and the LGSCO. While there may be many reasons for this, we conclude that a more clearly defined and independent complaints process would give important reassurance that all complaints will be fairly and properly investigated. It would also enable much greater transparency about real numbers of justified complaints. (Paragraph 39)
3. We recommend that there should be an independent complaints body, to which all complaints about bailiffs should be escalated if the complainant has exhausted local complaints procedures (ie. those of the organisation for which the bailiff was working). The complaints process should be very clearly set out, and have as few levels as possible so that it is easy to navigate. (Paragraph 43)
4. We recommend that the MOJ should, when deciding where to site the independent complaints function, take full account of the existing role of the Local Government and Social Care Ombudsman. It is particularly important as the Ombudsman has the ability to investigate how both the local authority and the enforcement agent acted, in order to ascertain where any fault may lie. (Paragraph 50)
5. The MOJ must also take into account the opportunities afforded by the planned Public Service Ombudsman. However, we are concerned about the delay in introducing the legislation required to implement the Government proposals for this body. We add our voice to that of the Public Administration and Constitutional Affairs Committee in recommending that the Government should invite the House of Lords to join the House of Commons in setting up a joint committee to conduct pre-legislative scrutiny of the draft Public Service Ombudsman Bill as soon as possible. (Paragraph 51)
6. We are surprised that bailiffs are apparently so under-regulated compared with other sectors, especially given that they deal with some of the most vulnerable people in society. It does not make sense for enforcement to be regulated only through the rubber-stamping of individuals through a court certification process. In our view, it would increase the reputation of the sector to have much stronger regulation. (Paragraph 63)
7. Having said that, the enforcement industry is relatively small: about 2,500 civil enforcement agents and just over 40 High Court Enforcement Officers are registered with the MOJ. It is important that any new regulation function should be proportionate and not over burdensome, so as to reduce costs which might be passed on to the public purse. (Paragraph 64)
8. We recommend that the Government establish a regulator for the enforcement agent industry, separate to the complaints body. The regulator should be able to stop unfit enforcement agents and companies from practising. It should have the power to set intermediate sanctions such as fines for poor behaviour. An appeal mechanism should be built in. This regulator should also work to change culture and raise standards (for example, by dissemination of good practice, owning and updating the National Standards, and supporting continuing professional development). It should work closely with the complaints body, for example, sharing information about good practice. The Ministry of Justice should consult widely on where this regulatory responsibility should sit, whether in an existing body or a new body, and how it should be funded. (Paragraph 65)
9. We welcome the MOJ’s work to evaluate debt recovery rates, since it is important that as much debt as possible is collected without expensive bailiff visits or the pain of the seizure and sale of personal goods. The fee structure also deserves close attention, since it has not been properly reviewed or updated since its introduction in 2014, despite the Government’s intention at the time to review annually in the light of CPI inflation. Given that these fees are paid by some of the poorest people in society, it is vital that the fees are proportionate. (Paragraph 72)
10. We recommend that the new regulator regularly reviews and makes expert recommendations to the MOJ about the fixed fee structure set out in The Taking Control of Goods (Fees) Regulations 2014. Fees should be set as low as possible while ensuring the sustainability of the enforcement industry. (Paragraph 73)
11. Technology has moved on since the National Standards were produced in 2014. We were struck by the LGSCO’s evidence that they had not found fault with the agent’s behaviour in a single case where the enforcement agent was wearing a body- worn camera. (Paragraph 77)
12. We recommend that body-worn cameras be mandatory for all enforcement agents visiting homes and businesses. We also recommend that the regulator produce good practice on their use. (Paragraph 78)
Tuesday 2 April 2019
Members present:
Robert Neill, in the Chair
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Bambos Charalambous |
Gavin Newlands |
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Robert Courts |
Victoria Prentis |
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Janet Daby |
Ellie Reeves |
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David Hanson |
Marie Rimmer |
Draft Report (Bailiffs: the enforcement of debt), proposed by the Chair, brought up and read for the first time.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 78 agreed to.
Summary agreed to.
Resolved, That the Report be the Seventeenth Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
Ordered, That embargoed copies of the report be made available, in accordance with the provisions of Standing Order No. 134.
[Adjourned till Wednesday 3 April at 9.30am
See the Committee website for a list of witnesses that gave evidence to this inquiry and transcripts of the oral evidence sessions.
A full list of written evidence submitted to this inquiry is available on the Transport Committee website.
All publications from the Committee are available on the publications page of the Committee's website.
1 A note on wording: While the formal term ‘enforcement agent’ is used in the legislation when referring to the people who carry out civil enforcement, the term ‘bailiffs’ is more commonly understood. We have therefore used the two terms interchangeably in this report.
2 Westminster Hall, Bailiffs: Regulatory Reform, 9 January 2019, Volume 652
3 Ministry of Justice, Review of the 2014 enforcement agent reforms introduced by the Tribunals, Courts and Enforcement Act 2007: Call for evidence (25 November 2018).
4 Ministry of Justice, Press release: Crackdown on rogue bailiffs (2 April 2018)
5 Ministry of Justice, One Year review of Enforcement Agent reforms introduced by the Tribunals, Courts and Enforcement Act 2007 (April 2018)
6 House of Commons Treasury Select Committee, Household Finances: income, saving and debt: Government (July 2018) para 49
7 Q117 (Carole Kenney). See also Policy and Practice (commissioned by the Local Government Association), The Cumulative Impacts of Welfare Reform (August 2017), p12: “the localisation of Council Tax… together with a 10% funding cut, resulted in over 4.4 million households in Great Britain losing some [Council Tax] support [since 2013].”
9 Money Advice Trust (BFF0005) para 7.7, quoting Money Advice Trust, Stop the Knock: Mapping local authority debt collection practices (2017). This states that “2.3 million debts were passed to bailiffs by local authorities in England and Wales in 2016–17—an increase of 14% on two years previously. The majority of these debts (1.38 million) were council tax arrears.”
11 Ministry of Justice, Review of the 2014 enforcement agent reforms introduced by the Tribunals, Courts and Enforcement Act 2007: Call for evidence (25 November 2018) p21
12 Source: Ministry of Justice, Review of the 2014 enforcement agent reforms introduced by the Tribunals, Courts and Enforcement Act 2007: Call for evidence (25 November 2018), which states that there are currently about 2,500 civil enforcement agents and just over 40 High Court Enforcement Officers registered with the Ministry of Justice.
13 For further information, see House of Commons Library Briefing Paper Number CBP04103, Q&A: Enforcement officers (formerly known as bailiffs), 24 January 2019
14 MOJ, Certificated Enforcement Agent (Bailiff) Register
15 Citizens Advice, A law unto themselves- how bailiffs are breaking the rules (2018), P5, quoting data from Money Advice Trust and Ministry of Justice
16 Ministry of Justice, One Year review of Enforcement Agent reforms introduced by the Tribunals, Courts and Enforcement Act 2007, April 2018, P6
17 Ministry of Justice, One Year review of Enforcement Agent reforms introduced by the Tribunals, Courts and Enforcement Act 2007, April 2018, P3–4
19 Q98 (Tracey Stone) Q101 (Andrew Wilson) Association of Civil Enforcement Agents (BFF0004)
20 Q98 (Carole Kenney) Q101 (Andrew Wilson)
30 www.gov.uk/your-rights-bailiffs/how-to-complain-about-a-bailiff (accessed 20 March 2019)
32 Q126 (Carole Kenney) Q51 (Simon Jacobs)
36 The Campaign for Enforcement Reform (BFF0009) p4
37 Civil Enforcement Association (BFF0002)
38 Civil Enforcement Association (BFF0002)
40 Certificated Enforcement Agents Association (BFF0004)
44 There is an exception in that the LGCSCO does not have jurisdiction over high court bailiffs, even if collecting local authority debt such as housing benefit overpayments, sundry debts and rent.
45 Local Government and Social Care Ombudsman (BFF0010)
47 ie. between 1 April 2014 and 31 December 2018
48 Local Government and Social Care Ombudsman (BFF0010)
49 Citizens Advice, The rules of enforcement: making a complaint about the behaviour of bailiffs in a self-regulated system (January 2019), p17
50 There is no charge for making a complaint about certification (ie that a bailiff is not a fit and proper person to hold a certificate), but a fee of £255 (with the possibility of means tested fee remission) for complaints about over-charging or breach of the rules.
51 Citizens Advice, A law unto themselves: how bailiffs are breaking the rules (November 2018) p23
52 Q82 (Russell Hamblin-Boone)
53 Citizens Advice, A law unto themselves: how bailiffs are breaking the rules (November 2018)
55 Civil Enforcement Association (BFF0002)
56 Q117 (Carole Kenney); see also Marston Holdings (BFF0008)
57 High Court Enforcement Officers Association (BFF0001)
59 Money Advice Trust (BFF0005) para 5.1
62 AdviceUK, Christians against Poverty, Citizens Advice, Community Money Advice, Institute of Money Advisers, Money Advice Trust, Money and Mental Health Policy Institute, PayPlan, StepChange, The Children’s Society, Z2K, Taking control: the need for fundamental bailiff reform, 2017
63 Civil Enforcement Association (BFF0002) Para 61
64 Certificated Enforcement Agents Association (BFF0004) para 14
65 Citizens Advice (2019), “A law unto themselves: How bailiffs are breaking the rules”, pp.5.
68 Local Government and Social Care Ombudsman (BFF0010) para 20; Q53 (Russell Hamblin-Boone); Q182 (David Platts)
69 Local Government and Social Care Ombudsman (BFF0010) para 19
70 Local Government and Social Care Ombudsman (BFF0010) para 22
71 Public Administration and Constitutional Affairs Committee, PHSO Annual Scrutiny 2016–17: Third Report of Session 2017–19, April 2018 (HC 492) para 23, 24
72 Public Administration and Constitutional Affairs Committee, PHSO Annual Scrutiny 2016–17: Government and PHSO response to the Committee’s Third Report: Sixth special report of session 2017–19, July 2018 (HC1479) p5
77 AdviceUK, Christians against Poverty, Citizens Advice, Community Money Advice, Institute of Money Advisers, Money Advice Trust, Money and Mental Health Policy Institute, PayPlan, StepChange, The Children’s Society, Z2K, Taking control: the need for fundamental bailiff reform, 2017
78 Money and Mental Health Policy Institute (BFF0007)
79 StepChange Debt Charity (BFF0006)
80 Q155 (Carole Kenney) Q191 (Barrie Minney)
83 Q201 (David Platts, quoting his discussions with Bristow & Sutor. Note that we did not take direct evidence from Bristow & Sutor)
85 Q201 (David Platts, quoting his discussions with Bristow & Sutor)
87 Q91(Russell Hamblin-Boone), Q96 (Simon Jacobs)
88 Certificated Enforcement Agents Association (BFF0004)
93 Local Government and Social Care Ombudsman (BFF0010) para 18
94 Q30 (Joanna Elson) Q38 (Joe Lane). On the other hand we also heard arguments that the Financial Conduct Authority is not the appropriate authority because the firms are not subject to the Financial Services and Markets Act (Q91, Russell Hamblin-Boone)
97 Q196 (John Kruse) Q35 (Joe Lane)
99 Q191 (Barrie Minney) Q196 (John Kruse)
101 Q23 (Joanna Elson); AdviceUK, Christians against Poverty, Citizens Advice, Community Money Advice, Institute of Money Advisers, Money Advice Trust, Money and Mental Health Policy Institute, PayPlan, StepChange, The Children’s Society, Z2K, Taking control: the need for fundamental bailiff reform, 2017
103 Q98 (Carole Kenney) Q101 (Andrew Wilson)
104 Marston Holdings (BFF0008) p2
105 Marston Holdings (BFF0008) p2
107 Marston Holdings (BFF0008) p2. “Since 2014, therefore, removal of goods only takes place in 0.8% of cases, and circa 90% of these relate to vehicles. Removal of goods from a property is now very rare (less than 0.1% of cases) and—since 2014—many agents will not have undertaken this course of action at all”
108 Letter from Lord Keen of Elie QC to Robert Neill, Call for evidence on enforcement agents, 26 October 2018
113 Marston Holdings (BFF0008)
117 Local Government and Social Care Ombudsman (BFF0010) para 13
118 Marston Holdings (BFF0008); see also Carole Kenney (Q154), Andrew Hobley (Q170)
120 Certificated Enforcement Agents Association (BFF0004) para 15