The Certification of Enforcement Agents Regulations 2014 finally released. Complaints to rise dramatically!!

[tomtubby]

http://www.legislation.gov.uk/uksi/2014/421/made

 

On Friday 28th February the government released The Certification of Enforcement Agents Regulations 2014. This is the third and final set of Regulations which will underpin the Government's reforms to bailiff law.

 

The first set, The Taking Control of Goods Regulations 2013, were laid in Parliament on 30th July last year and set out the procedure enforcement agents must follow when taking control of goods.

 

The second set, the Taking Control of Goods (Fees) Regulations 2014 were laid in Parliament on the 9th January and set out the fees and disbursements an enforcement agent may recover from the debtor when carrying out enforcement related work.

 

All three sets of regulations will come into force on 6th April.

 

 

http://www.legislation.gov.uk/uksi/2014/421/made

[brassnecked]

All in all one ill thought out mess, mayhem and a clogged court system both Civil , with interpleaders, and Criminal when bailiffs and third parties whose goods have been taken come to blows. This one removes any credibility of the government regarding cleaning up and sorting the enforcement system. How on earth one can call the collection of debt an "Industry" is beyond me.unless the product of the industry which is often misery as the debtor who through reduced circumstances cannot pay the principal debt let alone the debt quadrupled or more with fees would have been jailed in Dickens's time. Perhaps the MOJ could set up a MISERY productivity scale with ratings for the degree of misery caused, say 10 for a suicide, 9 for serious self harm, 8 for assault on the bailiff, 7 for homelesssness due to losing job as cannot commute due to inability to afford interpleader for third party after car taken for anothers debt .etc etc

[tomtubby]

This long awaited third statutory instrument relates to Section 63 of the Tribunals Courts and Enforcement Act and outlines the requirements which must be satisfied before a certificate is to be issued.....the duration of the certificate..... how they may be suspended or cancelled and the making of complaints that the person is not a fit a proper person to hold a certificate.

 

 

This new regulation REPLACES the provisions of the Distress for Rent Rules 1988 which will be revoked on 6th April.

 

Pages 1 to 6 deal with the certification and complaints procedure for enforcement agents.

 

 

Pages 7 though to 31 are copies of the new Statutory Notices.

[tomtubby]

This third regulation was expected long ago and as important as it, is it is still very difficult to advice debtors on the new procedures given that this new regulation (released on Friday) will sit alongside provisions which will be set out in revised Civil Procedure Rules and a supporting Practice Direction.

 

We are told that the new Civil Procedure Rules will be laid in Parliament shortly.

 

A further Statutory Instrument will also be released that will detail all transitional arrangements.

[tomtubby]

The following is in relation to pages 1-6 regarding the Certification procedure for Enforcement Agents:

 

Regulation 3 sets out the matters of which the judge must be satisfied before a certificate may

be issued. Those are that the applicant for the certificate—

 

— is a fit and proper person to hold such a certificate;

 

— has sufficient knowledge of the relevant law and practice to be competent;

 

— will use forms which follow the appropriate template (as set out in the Schedule);

 

— has lodged (or otherwise has in place) the necessary security (as set out regulation 6); and is not involved (as employee or otherwise) in the business of buying debts.

 

Regulation 4 requires the court to keep and publish certain information about certificated persons.

 

Regulation 7 provides for the duration of a certificate (2 years from issue unless it has to be replaced under regulation 8 because of a change in certain details).

 

Regulation 9 makes provision about the making of complaints that a certificated person is not a fit and proper person to hold a certificate; and

 

Regulations 10 and 11 make provision about possible cancellation or suspension of a certificate, and application of the certificated person’s security, following a hearing of such a complaint.

 

Regulation 12 makes provision about the surrender of certificates and regulation 13 for a certificate which has been cancelled or suspended or has expired to continue to have effect for certain limited purposes enabling enforcement action to be completed.

 

Regulations 14 and 15 make transitional provision in relation to certificates issued or applications made under the Distress for Rent Rules 1988.

[tomtubby]

Apparently, (as I understand it) there will be specific Judges appointed who will deal with enforcement agent (bailiff) certification and those same Judges will hear any complaints.

 

The new regs are merely an outline and further fine detail will be in the new Civil Procedure Rules and the supporting Practice Note.*

[tomtubby]

At this present time I do not want to address the matter of the statutory forms given that they have revealed some extremely serious points that appear to be of grave concern to ALL debtors. Queries have been raised and we are awaiting clarification.

 

One glaring error that the High Court Enforcement Officers noticed straight away was that the relevant statutory forms applicable to High Court debts has failed to include a box for ‘execution costs’.

 

I think this week is going to be a very busy one!!!

[brassnecked]

Will this all be sorted in time? I am not holding my breath

[tomtubby]

 

Will this all be sorted in time? I am not holding my breath

 

 

My personal opinion is NO.

 

Local authorities, enforcement companies and creditors are really annoyed at the Ministry of Justice's delay.

 

With regards to all 300 or so local authorities they will be required to AMEND all of the thousands of contracts that they currently have with enforcement companies (most councils have at least 3-4 Contracts with different bailiff providers). Contracts cannot be amended unless the local authorities and their respective legal departments fully understand the new regulations.

 

For bailiff companies they are required to provide adequate training etc and all their computer systems will need to be updated regarding the new fees and forms.

 

Again, from a personal point of view....these new regs should be immediately amended to reflect an October start date. I have rarely been more certain of anything than this statement.

[brassnecked]

My personal opinion is NO.

 

Local authorities, enforcement companies and creditors are really annoyed at the Ministry of Justice's delay.

 

With regards to all 300 or so local authorities they will be required to AMEND all of the thousands of contracts that they currently have with enforcement companies (most councils have at least 3-4 Contracts with different bailiff providers). Contracts cannot be amended unless the local authorities and their respective legal departments fully understand the new regulations.

 

For bailiff companies they are required to provide adequate training etc and all their computer systems will need to be updated regarding the new fees and forms.

 

Again, from a personal point of view....these new regs should be immediately amended to reflect an October start date. I have rarely been more certain of anything than this statement.

 

Having had experience of government, and council IT systems, October 2014 would be too early imho, we would be lucky if they were ready by April 2015

[tomtubby]

Sorry I had made an error in this post. I will be explaining more in a NEW thread. Suffice to say that for once...I am DELIGHTED!!!!

 

WOW !!!!

[lamma]

I may have been far too kind when I called this a bugger's muddle.

[brassnecked]

I may have been far too kind when I called this a bugger's muddle.

 

You were too kind lamma, it is complete and utter F**k Up. I forsee a great deal of problems and courts clogged up with complaints, interpleaders, and criminal cases for assault laid on innocent third parties whose property has been seized who cannot afford the interpleader for clobbering the bailiff, and the bailiff being arrested for defending himself. After all the police will claim two crimes cleared up for arresting both.

[tomtubby]

With regards to what is now known as a "Form 4 Complaint' the following is taken from the Explanatory Memorandum (link below) and outlines the changes that will take effect concerning complaints about Enforcement Agents made to the court from 6th April:

 

 

"Currently, applications can be made to regional courts with hearings taking place at the same court. This has meant that some judges handle very few complaints or applications in comparison to those at other courts and therefore these are not always dealt with consistently. The number of court centres at which applications and complaints may be heard has been reduced (and the court centres in question will be set out in accompanying Practice Direction) to ensure judicial specialism is developed in those courts"

 

 

"At present, a complaint about an enforcement agent can be made to the court if the enforcement agent has acted in a way that calls into question whether they are a fit and proper person. However, this process has not always been used for this purpose and has in some cases turned into unnecessarily lengthy litigation, with the associated costs involved, over matters of procedure or fees which have separate complaint provisions".

 

"These Regulations provide the judge with the opportunity to dismiss, at an early stage and without significant costs having been generated, complaints which do not relate to an enforcement agent’s fitness to hold a certificate"

 

 

http://www.legislation.gov.uk/uksi/2014/421/pdfs/uksiem_20140421_en.pdf

[tomtubby]

One important lesson that I have learnt this weekend is to not put too much emphasis on a Statutory regulation (such as this one) but instead to wait to see the 'detail' in the supporting Civil Procedure rules.

 

There are a few interesting points to mention.

 

First, is that less courts will deal with complaints and those that do so will be able to 'filter' out the Complaints that have no merit and dispose of them at an early stage.

 

Secondly, it is made clear in paragraph 9 that anyone may bring a complaint to the court that a bailiff is not a 'fit and proper' person to hold a certificate. There are quite a few applications to court that have been challenged where the present Form 4 was issued by the bailiff's employer against their own bailiff. Under paragraph 9 it has become clearer that this permitted.

 

Paragraph 11(b) is new in that upon hearing the complaint in person ( and whether the certificate is cancelled or not) the Judge can order the COURTS COSTS to be deducted from the bailiff bond.

[brassnecked]

So a passer by who witnesses the bailiff doing something wrong can submit the Form 4?

[HCEOs]

The new prescribed forms will certainly have an effect on the climate.

 

Given that they can't be altered and have to be in triplicate in case a third party claims goods seized, a simple job could now need 27 sheets of paper!!

 

Who'd have thought the Bailiff Consultation could lead to climate change....

[tomtubby]

HCEO

 

As you will probably know, the 'enforcement sector' have been pushing for these new regs for a long time and some companies have spent a lot of money employing firms to 'lobby' government so as to ensure that the regs incorporate changes that they want. By comparison, the 'advice' sector mainly consist of voluntary organisations and MOJ have not taken as much notice of this sector as they should have done.

 

The sad fact of life is that these new regs are a classic example that sometimes.....things that somebody wishes for are actually worse than what that person has at present.

 

Taking HCEO enforcement away for a while and looking at council tax then the 'rot' really set in around 1997 when a Consultation Paper had been issued by DETR (Department of Environment Transport & Regions). This Consultation had been concerning Schedule 5 Fees and other areas of bailiff enforcing for unpaid council tax.

 

Announcing the outcome of the Consultation the Government stated that they would be consulting on proposals to amend primary legislation to require local authorities to set a 'fee maxima' at the start of the tax year regarding the fee for 'attending to remove'. Sadly, this was NOT done. Instead, what we had was badly worded legislation that has been the subject of 'convenient misinterpretation' by bailiff companies seeking to exploit its weakness.

 

'Attending to Remove' and 'Aborted Van fees' have blighted the fee scale (for parking and council tax enforcement) for many years, and sadly, the new regulations appear to once again allow this rouge charge to be permitted.

 

When will anyone learn !!!

[brassnecked]

"'Attending to Remove' and 'Aborted Van fees' have blighted the fee scale (for parking and council tax enforcement) for many years, and sadly, the new regulations appear to once again allow this rouge charge to be permitted.

 

When will anyone learn !!!"

 

When the car trade goes under due to bailiff auctions of seized cars sending the prices through the floor perhaps?

[HCEOs]

tomtubby, I can assure you that not all the enforcement sector have been pushing for these new regulations. The High Court and Commercial Rent sector are almost certainly going to find it tougher, in the most part because of the new 7 day letter. The principle behind the letter is sound but in practice it will lead to debtors hiding/selling goods etc. Not all judgment creditors are corporate and utilities, many are hard working people that have been wronged.

 

For the most part I think the regulations make sense but do feel that another 6 months would have allowed some of the apparent issues to be resolved.

[tomtubby]

I am pleased to see that this thread was picked up by SCOOP this morning:

 

http://www.scoop.it/t/lacef-news

[dementedfeline]

Question about the new complaints procedure - if you make a complaint April onwards, will it automatically be handled as per new rules, even if the event you are complaining about happened under the OLD rules?

 

Ta.

[tomtubby]

There is supposed to be a 'transitional' period and this will be outlined in further regulations due shortly.

 

I assume from your above enquiry that you are referring to a 'Form 4 Complaint'. If so, it is important to make something very CLEAR.

 

There are many forums and 'advice services' offering assistance to debtors regarding bailiff enforcement and yet......so far there is NO EVIDENCE WHATSOEVER of even one case of a Form 4 complaint being found in favour of the complainant. Not one.

[brassnecked]

Looking closer at the Regulations, it has become clear that April is far too soon, and I concur with yourself and HCEOs that October at the earliest would be sensible.

[tomtubby]

Sorry only time for a quick response as hospital appointment awaits me:

 

The new council tax bills bill be hitting the doorsteps of 25 million households on the very same week that these new Regulations are implemented (6th April).

 

It is a FACT that there will be a substantial number of debtors who will fall into arrears straight away and most of these will be low income families and those from 'vulnerable' households whose finances have been hit for six by the changes to the bedroom tax and other benefit changes. Last year 3 million people were subject to a Liability Order. There is far too much to take in with these regulations and it is imperative that the government reconsider amending the regs to have an October start date.

 

That will allow more discussion to take place with stakeholder groups.....allow local authorities to consider the regaultions......allow LA legal teams to draw up new contracts with their enforcement companies.....allow IT teams in local authorities and enforcement companies to make software changes.......allow bailiffs to undertake the necessary training.......allow car finance companies the time to consider the Third Party Claims.......but most importantly...to allow debtors to understand the serious implications if they fail to pay their debt to the councils or engage with them.