Dealing with Bailiffs is something a lot of people experience but very few know their rights.
Essentially there are four types of Bailiff that you might encounter, these are:-
Private (Certificated) Bailiffs
A Certificated Bailiff is someone who has been granted a certificate by a County Court Judge, enabling that person to levy distress. Each certificate lasts for two years and gives the Bailiff authority to levy distress anywhere in England and Wales.
In order to obtain a certificate the applicant must satisfy the Judge that -
they are a fit and proper person to hold a certificate
they have sufficient knowledge of the law of distress
they are not in the business of buying debts
They must also provide two references, undergo a Criminal Records Check, a County Court Judgement check and provide a security bond of £10,000 (this is usually in the form of an insurance bond).
Only Certificated Bailiffs can carry out distress for:
Parking Charge Notices
The Child Support Agency
H.M. Revenue & Customs
Magistrate Court fines
County Court Bailiff
Employed by the County Courts (where they are based) they enforce County Court Orders and Orders made at tribunals that have been transferred to the County Court for enforcement.
High Court Enforcement Officer
These are private Bailiffs appointed to enforce High Court Orders and any County Court Order that a creditor transfers to the High Court for enforcement. These Bailiffs were formerly known as Sheriff's Officers.
Fines Officers and Civilian Enforcement Officer (C.E.O.)
They are employed by the Magistrates Courts under the provision of Section 92 of the Access to Justice Act 1999, the Magistrates Courts (C.E.O.) Rules 1990 and the Courts Act 2003.
These officers are able to execute numerous warrant types including distress warrants, warrants for arrest (including warrants of arrest for breaches of community sentences), as well as commitment for non-payment of fines and other sums a court has ordered to be paid.
It should be noted that there are a few other people who have similar powers to Bailiffs thus allowing them to seize goods, such as a Collector of Taxes, who under Section 61 of the Taxes Management Act 1970 can levy distress for both unpaid Income Tax and national Insurance.
There is also an officer of the Supreme Court called the Tipstaff who carries out very specialised High Court enforcement.
This is the easiest item to levy against as in most cases it is either on your drive or close to your property, therefore it is the item Bailiffs target especially as they do not have to gain entry into your home.
Also clamping of a vehicle by Bailiffs enforcing a Liability Order for outstanding Council Tax appears to be a more commonly used tactic to try and force you to pay immediately.
The potential loss of the family car is quite emotive and is often enough to force the dedbtor to raise the funds through extreme measures, borrowing from friends or family or using monies that are vital for living expenses.
A vehicle should not be seized if any of the following apply:
the vehicle does not belong to you
you are self employed and the car is necessary for your business (it should be for your use ony)
the vehicle is subject to a finance agreement
the vehicle is subject to a Hire Purchase agreement
Ensure you have all the paperwork relating to any vehicle and keep it somewhere where you can easily find it, if a Bailiff does try to seize a vehicle you need to show them the paperwork to confirm why it should not be seized, Case Law confirms that the onus of proof is on you and that it is "not reasonable to expect the Bailiff to make enquiries as to ownership".
The Bailiff can only take a vehicle that is owned by you, if the Bailiff takes a vehicle. If the Bailiff has removed avehicle that does not belong to you the first action is to write to the Bailiff with proof of the vehicles correct ownership.
If you are self employed, under Section 54 of the Magistrates Courts Rules it expressly prohibits Bailiffs from removing a vehicle used in the course of employment.
You need to be able to confirm your self employed status (in order for the vehicle to qualify for exemption from seizure for business use, the vehicle must be for your use, the vehicle must be for personal use in your business.
If your car is on finance a Bailiff is not allowed to take the vehicle, which is the same for Hire Purchase, legally the vehicle belongs to the finance company until the final loan or H.P. payment has been made.
Clamping or Immobilising a Vehicle
Although a little confusing we understand that a Bailiff can clamp or immobilise a vehicle. Generally, anyone who clamps or immobilises a vehicle on private land must hold a S.I.A. license (under the Private Security Industry Act 2001, all vehicle immobilisers by law must hold a Vehicle Immobikliser License grnated by the Security Industry Authority (S.I.A.)). However, the Government made changes to the licensing requirements in July 2006 and one of the changes states:-
"Contractors used by the Courts that clamp or immobilise a vehicle in pursuit of outstanding fines are removed from the requirement to be licensed under the Security Industry Authority".
As a result of this change it would seem a Bailiff does not need to hold a S.I.A. license if pursuing an unpaid fine.
What Else Can a Bailiff Take (Seize)?
The Bailiff is tasked with enforcing a warrant and whilst they would prefer to receive full payment for the debt and their costs, by law they have the right to levy on goods.
A Bailiff is only allowed to take sufficient goods to cover the outstanding debt plus their costs.
Statutory regulations state that the following items are exempt and must not be taken:-
Such tools, books, vehicles and other items of equipment as are necessary for use personally in employment, business or vocation
Such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying basic domestic needs of the person and family
The above points are somewhat vague, however a number of local authorities have been more specific in listing what they believe is exempt and these lists form part of their contract with the Bailiffs they employ. The items listed are:-
Goods of minimal or no resale value
Items that would leave the family unable to prepare a hot meal
The main form of cooking (if you have more than one form i.e. cooker and microwave, the Bailiff can seize the microwave)
Disability items used to care for the sick
Medical aids and medical equipment
Children's items, toys, prams (not including bicycles and computers)
Personal items, for instance family photographs
Items of minimal value
Goods which are rented or hired
Items that are attached are also exempt (i.e. built in ovens and wall mounted flat screen televisions)
Always remember that the onus of proof is on the owner of the goods seized to show they are exempt because they fall into a particular category or that they do not belong to the debtor (person(s) named on the warrant).
Once a warrant is issued it is passed to the Bailiff for enforcement who in turn will visit your property where they will either collect the debt plus their costs or levy distress (quite often the wording used is to seize goods).
In order to levy distress the Bailiff has to raise and agree aWalking Possession.
Distress is a process that occurs in three stages:-
entry into your premises
the seizure of goods
the subsequent securing of the goods
Entry into Your Premises
The Bailiff can only gain entry into your home through "Peaceful entry", whilst a Bailiff may tell you that as they have a Court Order it gives them the right to enter your premises, this is not true (the only exception is the collection of criminal fines).
Peaceful entry or entry by peaceful means in fact means that a Bailiff cannot enter your premises by forcing a door or window, they cannot barge past you and they cannot physically threaten you. However, if a door or window is open they are entitled to gain access i.e. if the door is open or unlocked a Bailiff is within their rights to enter, similarly if there is a window open the Bailiff can climb through it.
If you speak to a Bailiff who is trying to gain access to your premises be aware that in order to gain peaceful entry they may ask if they can come in and use your telephone, or to show you their paperwork, or even to use your toilet, if you allow them in for whatever reason this is deemed as peaceful entry and you now cannot ask them to leave (and they will not leave until they have levied against your goods).
Seizure (Levying) of Goods
Once a Bailiff has entered into your premises they will be legally entitled to access any room in your home and be able to open any doors, cupboards or drawers. Normally the act of levying does not mean the goods will be taken away there and then, rather it means the goods have been secured (impounded) and will be left in the property and will only be collected if you do not pay the debt under whatever agreement you make with the Bailiff. If you fail to make the agreed payments the Bailiff can return and force entry if necessary in order to remove the goods for auction.
Securing the Goods (Impounding)
Once the goods have been seized the Bailiff is required by law to secure them so that they cannot be removed, sold or hidden once the Bailiff has left the property.
The Bailiff will list the seized items on aWalking Possession form, which the debtor signs.
A Walking Possession is a legal document (which needs to be signed by the Bailiff and the debtor in order to be enforceable) that means the items listed have now been seized and if necessary, they can be sold to pay the outstanding debt if you default on any payment arrangement.
You can refuse to sign but once a Bailiff is in your property it is very unlikely they will leave without asigned Walking Possession or removal of seized goods.
Before signing a Walking Possession it is sensible for you to seek advice.
Fees for a Walking Possession
Fees are governed by statutory legislation, for the collection of Council Tax & Bsuniess Rates the fees are set at £24.50 for a first visit and for a second visit the fee is £18.00.
If you sign a Walking Possession the Bailiffs fees increase as they can then charge a further flat fee of £12.00 for entering into a Walking Possession when collecting for Council Tax or a daily fee of £0.55 (for 14 days) when collecting on unpaid Parking Charge Notices.
A Bailiff can only seize goods that belong to the person who owes they money (the person or persons named on the warrant), the exception is that any goods in the property can be seized for distress for rent. The Bailiff will attempt to seize any goods of value so it is important to have proof of ownership for all goods in your property, especially those that do not belong to you.
It has been the experience of some of our clients that upon returning to their property (following a Bailiff visit) a Walking Possession had been posted through the letterbox with a letter stating that the Bailiff had levied goods by looking through the window, requesting that the Walking Possession be signed and returned to the Bailiffs office. A Bailiff can only levy against goods once they have gained access into your property - DO NOT BE FOOLED and if in any doubt seek advice.
Before a Bailiff can remove goods they must first have entered into your premises and seized goods (unless they have seized a vehicle).
If the only person present at the property is or appears to be under 18 years old the Bailiff must withdraw, they can ask when the debtor will be home but cannot enter the premises.
If the only person presnt is or appears to be under 12 years old the Bailiff must withdraw immediately and cannot ask any questions.
Some examples of charges:-
A debtor will incur additional costs for each Bailiff visit even when nobody is home, current fees are-
1st visit = £24.50
2nd visit = £18.00
For debts less than £100.00, the Bailiff will charge £24.50
Where the debt is more than £100.00 fees are calculated on the following basis-
22.5% on the first £100.00
4% on the next £400.00
2.5% on the next £1,500.00
1% on the next £8,000.00
0.25% on any addidtional sum
Magistrates Court Fines
There is no proper regulation for Bailiff charges relating to collection of Magistrates Court fines, the only stipulation is the charges must be "reasonable and not disproportionate to the size of the debt", as agreed between the Magistrates Court and the Bailiff. Current guide is-
20% on the first £100.00
The costs are then as per the Council Tax fees above.
County Court Judgements
Generally the amount depends upon whether the judgement is from a normal County Court or a Bulk Centre County Court.
Debt of £300.00 or less - County Court = £30.00; Bulk Centre = £20.00
Debt of £300.00-£500.00 - County Court = £50.00; Bulk Centre = £40.00
You cannot be arrested or imprisoned for refusing to allow a Bailiff entry into your property, even if the Bailiff is accompanied by the Police (the Police are in attendance only to ensure there is no breach of the peace).
You can be imprisoned for willfully refusing to pay Council Tax, Child Maintenance (CSA) or Magistrates Court fines.
A Debt Collector is not a Bailiff and does not have the right to levy on goods. For further information on Debt Collectors and what they can do please click on the link below.
The Conduct of Levies:
"Unlawful force" should not be used to enter any premises
If the Police are called to deal with a breach of the peace, their presence must be explained including the fact they are not there to help with the levying of goods
If the only person present appears to be under 18, the agent must depart, but may ask when the debtor will be home. If the only persons at home is/are under the age of 12, the agent must simply leave
Bailiffs should avoid so far as is practicable avoid disclosing the purpose of their visit to anyone who is not the debtor. Relevant documents should be left in a sealed envelope addressed to the debtor.
Visits should ideally only be made between 6am and 9pm (or any time that the debtor is conducting business). Visits should not take place on Sundays, Bank Holidays, Good Friday or Christmas Day, unless legislation or a Court permits it. Respect for other religions and cultures should be upheld and visits avoided on appropriate festivals and holidays
Goods that are clearly those of a child should should not be seized
Bailiffs should take all reasonable steps to satisfy themselves that the value of the goods seized is proportional to the debt and charges owing
When goods are removed, receipts should be given to the debtor
Debtors must be notified of fees on each visit and of the fees that will be incurred if further action takes place
If you require a copy of the National Standards for Enforcement Agents please click on the link
How to Make a Complaint Against a Bailiff
In the first instance you can complain to the creditor who instructed the Bailiff, such as the local authority, the County Court or a trade association. There are two main trade associations:-
Certificated Bailiffs Association (CBA)
14 John Dalton Street,
Telephone: 0161 839 7225
Association of Civil Enforcement Agencies (ACEA)
150 Regent Street,
Telephone: 0207 432 0366; Facsimile: 0207 432 0516; Email: [email protected]; Website: www.acea.org.uk