June 12, 2019 at 12:31 pm #22300AdministratorKeymaster
Guidelines define the classes of vulnerable people and the law protects vulnerable people from enforcement action in certain circumstances. If the vulnerable person is alone, the law says the bailiff may not take control of goods. Otherwise, the law requires the bailiff to give the vulnerable person an opportunity to “seek advice”. The law says fees are not recoverable from vulnerable debtors. The law does not make bailiff companies to have a “welfare department”. Bailiffs are not medically qualified to decide whether you are a vulnerable person or have access to DWP benefit entitlements.
Bailiffs and Vulnerable People
Bailiffs may not recover fees from vulnerable people.
Bailiffs may not take control of goods when the vulnerable person is home alone.
Creditors must prepare to take cases back from bailiffs when they discover a debtor is vulnerable.
Definition of a vulnerable person
The Ministry of Justice publishes the Taking Control of Goods National Standards 2014
Paragraphs 70 to 78 of the guidelines state;
70. Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with. The appropriate use of discretion is essential in every case and no amount of guidance could cover every situation. Therefore the agent has a duty to contact the creditor and report the circumstances in situations where there is evidence of a potential cause for concern
71. If necessary, the enforcement agent will advise the creditor if further action is appropriate. The exercise of appropriate discretion is needed, not only to protect the debtor, but also the enforcement agent who should avoid taking action which could lead to accusations of inappropriate behaviour.
72. Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 16 or is deemed to be vulnerable by the enforcement agent; they can ask when the debtor will be home – if appropriate.
73. Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12.
74. A debtor may be considered vulnerable if, for reasons of age, health or disability they are unable to safeguard their personal welfare or the personal welfare of other members of the household.
75. The enforcement agent must be sure that the debtor or the person to whom they are entering into a controlled goods agreement understands the agreement and the consequences if the agreement is not complied with.
76. Enforcement agents should be aware that vulnerability may not be immediately obvious.
77. Some groups who might be vulnerable are listed below. However, this list is not exhaustive. Care should be taken to assess each situation on a case by case basis.
i) the elderly;
ii) people with a disability;
iii) the seriously ill;
iv) the recently bereaved;
v) single parent families;
vi) pregnant women;
vii) unemployed people; and,
viii) those who have obvious difficulty in understanding, speaking or reading English.
78. Wherever possible, enforcement agents should have arrangements in place for rapidly accessing interpretation services (including British Sign Language), when these are needed, and provide on request information in large print or in Braille for debtors with impaired sight.
Section 1 of the The Disability Discrimination Act 1995 defines “disability” and “disabled person” to be:
a person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
Section 6 of the Equality Act 2010 defines “Disability” to be:
(1)A person (P) has a disability if—
(a)P has a physical or mental impairment, and
(b)the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
Bailiffs may not recover enforcement stage fees from vulnerable people
Regulation 12 of the Taking Control of Goods (Fees) Regulations 2014 states;
Recovery of fees from vulnerable debtors
12. Where the debtor is a vulnerable person, the fee or fees due for the enforcement stage (or, where regulation 6 applies, the first, or first and second, enforcement stages as appropriate) and any disbursements related to that stage (or stages) are not recoverable unless the enforcement agent has, before proceeding to remove goods which have been taken into control, given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.
Bailiffs may not take control of goods of lone vulnerable people
Regulation 10(1) of the Taking Control of Goods Regulations 2013 states;
10.—(1) The enforcement agent may not take control of goods of the debtor where—
(a)the debtor is a child;
(b)a child or vulnerable person (whether more than one or a combination of both) is the only person present in the relevant or specified premises in which the goods are located; or
(c)the goods are also premises in which a child or vulnerable person (whether more than one or a combination of both) is the only person present.
Creditors should be prepared to take control of the case
Paragraph 16 of the Taking Control of Goods: National Standards 2014 (Published by the Ministry of Justice) states;
Should a debtor be identified as vulnerable, creditors should be prepared to take control of the case, at any time, if necessary.
Paragraph 30 of the Taking Control of Goods: National Standards 2014 states;
Where enforcement agents have identified vulnerable debtors or situations, they should alert the creditor and ensure they act in accordance with all relevant legislation.
Bailiffs and religious observance
Paragraph 55 of the Taking Control of Goods: National Standards 2014 states;
Enforcement agents should be respectful of the religion and culture of others at all times. They should carefully consider the appropriateness of undertaking enforcement on any day of religious or cultural observance or during any major religious or cultural festival.
Ramadan and Eid
Local authorities and government agencies contractually require their enforcement contractors to have a moratorium between Christmas Eve and the day after New Years day.
Vehicles and cars displaying a disabled persons are exempt from civil enforcement. Regulation 4(d) of the Taking Control of Goods Regulations 2013 states;
A vehicle on which a valid disabled person’s badge is displayed because it is used for, or in relation to which there are reasonable grounds for believing that it is used for, the carriage of a disabled person;
Some bailiff companies have a “welfare department”.
It is a red herring designed to go behind rules requiring creditors to take control of cases involving vulnerable debtors.
Nothing in regulations or guidelines gives bailiff companies discretion as to whether or not a person is vulnerable. In any case, they are probably not medically qualified.
A 1997 Law Commission Report definition of a Vulnerable Adult is;
A person aged 18 or over, who is or may be in need of community care services by reason of mental or other disability, age or illness and who is, or may be unable to take care of him or herself or unable to protect him or herself against significant harm or exploitation.
If a person has mental health issues then a doctor or health care professional completes a MALG Evidence Form and send a copy to the council/creditor or the court.
Make a Formal Complaint to the council or creditor, copy in the bailiff company.
Ignore any reply you get from the bailiff company. They give an essay chronicling the history of the debt. Post it on the bailiffs forums if you would like it explained, but remember to mask out your personal details.
If you want to pay the debt minus the bailiffs fees direct to the council (or creditor) then using the following letter that sets out the legal position on vulnerable people, enclode payment, or a proposal to pay.
If your formal complaint is not resolved or their reply is not marked “Final Resolution” and/or fails to properly understand the nature of your complaint (whether by mistake or deliberate) or simply tries to exclude itself from following the complaints procedure, then you can start a fresh new formal complaint and ask the authority to pay you £120 for wasting your time. Treat this as a completely separate formal complaint.
If you don’t get a final resolution statement then make a separate complaint for failure to comply with statutory complaints procedures
Taking legal action
If the bailiff is pestering a vulnerable person then a complaint about the bailiff for rebuking regulation 10(1) of the Taking Control of Goods Regulations 2013 can be made
The bailiff exploited a vulnerable person
If the debt is a High Court writ, then using a form N244, apply to set aside the writ.
Attach a copy of the following documents:
1. The National Standards for Enforcement Agents 2012
2. Your completed MALG evidence form or evidence of out of work benefit.
The forum ‘Bailiffs and High Court writs’ is closed to new topics and replies.