Clamping, the TCE and the Protections of freedom Act 2012

[Peterbard]

In n order to better understand the current position regarding the above, I thought I would put my understanding on here and then hopefully people will correct any misconceptions.

 

The TCEA

 

The immobilization of vehicles as part of the taking control of goods procedure, is covered by schedule 12 of the TCE.

http://www.legislation.gov.uk/ukpga/2007/15/schedule/12

 

The power to take control of goods is given by section 13 of the schedule.

13(1)To take control of goods an enforcement agent must do one of the following—

(a)secure the goods on the premises on which he finds them;

 

(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;

 

©remove them and secure them elsewhere;

 

(d)enter into a controlled goods agreement with the debtor.

 

(2)Any liability of an enforcement agent (including criminal liability) arising out of his securing goods on a highway under this paragraph is excluded to the extent that he acted with reasonable care.

 

(3)Regulations may make further provision about taking control in any of the ways listed in sub-paragraph (1), including provision—

 

(a)determining the time when control is taken;

 

(b)prohibiting use of any of those ways for goods by description or circumstances or both.

 

The relevant sections being;

Subsection (a) which covers the securing of goods on a debtors premises,

Subsection (b) which covers the procedure on the highway.

 

Section 3 permits the creation of regulations which define the procedure to be used:

Taking Control of Goods regulations (2013 8094) http://www.legislation.gov.uk/uksi/2013/1894/contents/made

 

The relevant sections contained within the regulations are:

 

Section 16 which covers the immobilisation (clamping) on debtors premises:

16.—(1) Subject to paragraphs (2) and (3), an enforcement agent who is securing goods of the debtor on the premises on which they are found (under paragraph 13(1)(a) of Schedule 12) may secure the goods—

 

(a)in a cupboard, room, garage or outbuilding;

(b)in the case of goods on premises (or on a part of the premises) which are not occupied for residential purposes, by the enforcement agent remaining on the premises to guard the goods of the debtor of which the enforcement agent has taken control;

©by fitting an immobilisation device (which must be provided by the enforcement agent);

 

and Section 18. which covers he procedure for immobilization on the highway

 

Securing goods of the debtor on a highway and removal: vehicles

18.—(1) Where the enforcement agent is proceeding under paragraph 13(1)(b) of Schedule 12 and the goods to be secured are a vehicle, those goods must be secured in accordance with this regulation.

(2) The vehicle must be secured by an immobilisation device, unless the debtor voluntarily surrenders the keys to the vehicle to the enforcement agent.

(3) The immobilisation device must be provided by the enforcement agent. There are differences in the two procedures which can be discussed later, hopefully in this thread.

 

The next post will concern the Protection of Freedom Act 2012 and how (if at all )it effects the EAs ability to immobilize vehicles by the use of a clamp.

[Bailiff Advice]

Before the new regulations came into effect the entire matter of 'immobilising' a vehicle had been very unclear....but this is no longer the case.

 

The regulations as you have rightly highlighted above are clear in that a motor vehicle may be immobilised as a means of 'taking control of goods'. This provision is not in any doubt whatsoever.

 

The Protection of Freedoms Act 2012 is not in any way relevant to the immobilisation of a motor vehicle by a bailiff. A warrant of control gives the bailiff 'lawful authority' to 'take control of goods' by way of an immobilisation device (almost always by using a wheel clamp).

[Peterbard]

Before the new regulations came into effect the entire matter of 'immobilising' a vehicle had been very unclear....but this is no longer the case.

 

The regulations as you have rightly highlighted above are clear in that a motor vehicle may be immobilised as a means of 'taking control of goods'. This provision is not in any doubt whatsoever.

 

The Protection of Freedoms Act 2012 is not in any way relevant to the immobilisation of a motor vehicle by a bailiff. A warrant of control gives the bailiff 'lawful authority' to 'take control of goods' by way of an immobilisation device (almost always by using a wheel clamp).

 

Yes I agree, I think though it would be good to see where the POFA actually does apply, and perhaps illustrate the difference between the two pieces of legislation.

 

Also I would like to clarify the difference in procedure between taking control of goods on a highway and taking control of goods at the debtors premises.

 

For instance the two hour rule which applies to the clamping of a vehicle on the highway would not app;y to the immobilization on the debtors premises

[HCEOs]

The clamping of vehicles by a bailiff / enforcement agent has always been lawful.

 

It is a shame that other purported 'consumer help' sites continue to misunderstand the law and mislead those that go to them for help.

[Peterbard]

The clamping of vehicles by a bailiff / enforcement agent has always been lawful.

 

It is a shame that other purported 'consumer help' sites continue to misunderstand the law and mislead those that go to them for help.

 

HI HCEO, i appreciate the sentiment. I must stress however that I started the thread in order to clarify the law in this area and not to have a pop at other forums.

 

So please let that be the last mention of other forums, otherwise this thread will have a very short life.

[ploddertom]

HI HCEO, i appreciate the sentiment. I must stress however that I started the thread in order to clarify the law in this area and not to have a pop at other forums.

 

So please let that be the last mention of other forums, otherwise this thread will have a very short life.

 

[Bailiff Advice]

In order to try to answer the query in a way that can be understood by anyone viewing this thread it is important to stress that to in order for a bailiff to enforce a debt (and charge fees) the 'starting point' will be Schedule 12 of the Tribunal Courts & Enforcement Act 2007 which outlines the entire procedure that must be followed by enforcement agents.

 

Item 9 of Schedule 12 deals with the 'Place of Enforcement' and specifies that an enforcement agent may 'take control of goods' (which includes any household items or motor vehicles that are not considered 'exempt').

 

Item 9 states that:

 

"An enforcement agent may take control of goods only if they are

on premises that he has power to enter

under this Schedule, or:

 

On a highway".

 

Naturally of course the 'premises' (that he has a power to entry) would be the debtors property and would include the debtors driveway.

 

http://www.legislation.gov.uk/ukpga/2007/15/schedule/12?view=plain

 

 

 

 

[Peterbard]

In order to try to answer the query in a way that can be understood by anyone viewing this thread it is important to stress that to in order for a bailiff to enforce a debt (and charge fees) the 'starting point' will be Schedule 12 of the Tribunal Courts & Enforcment Act 2007 which outlines the entire procedure that must be followed by enforcement agents.

 

Item 9 of Schedule 12 deals with the 'Place of Enforcement' and specifies that an enforcment agent may 'take control of goods' (which includes any household items or motor vehicles that are not considered 'exempt').

 

Item 9 states that:

 

"An enforcment agent may take control of goods only if they are

on premises that he has power to enter

under this Schedule, or:

 

On a highway".

 

Naturally of course the 'premises' (that he has a power to entry) would be the debtors property and would include the debtors driveway.

 

http://www.legislation.gov.uk/ukpga/2007/15/schedule/12?view=plain

 

 

 

 

 

Yes indeed and a logical progression of that would be that the EA could not immobilize a vehicle if it were not on the highway or the debtors premises.

So if it were in a supermarket car park or unadopted land for instance the car could not be either seized under section 16 of the TCoGR or on a highway under section 18.

[Bailiff Advice]

With regards to the Protection of Freedoms Act 2012 it may be useful to read the following joint Home Office and Department of Transport publication that was released shortly after PoFA 2012 came into force:

 

You will need to read the final paragraph at the end of page 2 under the heading: 'Lawful authority'

 

As you will see this states as follows:

 

The term 'lawful authority' means where a specific legislation or express powers are in force, which allow for vehicles to be legally immobilised or removed.

 

'Examples of lawful authority include where statutory powers exist such as Road Traffic Regulations which allow local authorities or the police to clamp or tow vehicles on public roads.

Certificated bailiffs retain their powers to immobilise or remove vehicles'

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98406/fact-sheet-part3.pdf

[Bailiff Advice]

 

So if it were in a supermarket car park or unadopted land for instance the car could not be either seized under section 16 of the TCoGR or on a highway under section 18.

 

For the avoidance of doubt a bailiff cannot any longer clamp/immobilise a vehicle at any of the following locations:

 

Supermarkets

 

Retail parks

 

Hospitals

 

Motorway services

 

Private managed residential car parks

[Coughdrop]

I think if one goes to the POFA Explanatory Notes ( http://www.legislation.gov.uk/ukpga/2012/9/notes ) and scroll down to Section 54: Offence of immobilising etc. vehicles para.211, the position is made clear.

 

Subsection (1) makes it a criminal offence to immobilise a motor vehicle by attaching to the vehicle, or to a part of the vehicle, an immobilising device (typically a wheel clamp), or to move (for example, by towing away) or to restrict the movement of a vehicle (for example, by using another vehicle to prevent it being driven away). To be guilty of the offence, a person must undertake one of these actions with the intention of preventing or inhibiting a person entitled to move the vehicle concerned from moving the vehicle. Consequently, a person who moved an obstructively parked vehicle a short distance intending to regain access to his or her property would not be committing the offence in circumstances where he or she did not intend to prevent the driver of the vehicle from subsequently retrieving it. Similarly, the required intention would not be present in the case of a person applying a wheel clamp to his or her own vehicle to prevent theft. The offence does not apply where a person is acting with lawful authority when immobilising, moving or restricting the movement of a vehicle. There are a number of bodies with statutory powers to immobilise or remove vehicles in specified circumstances, including: local authorities when enforcing road traffic contraventions on the public highway or local authority managed car parks; the police when enforcing road traffic contraventions or otherwise removing vehicles that are illegally, obstructively or dangerously parked; the police and local authorities when exercising their powers to remove abandoned vehicles from public and private land; the Department for Transport’s Driver and Vehicle Licensing Authority (“DVLA”) in respect of vehicles that have no road tax; the Vehicle and Operator Services Agency in respect of vehicles that are not roadworthy; and the police and local authorities when exercising their powers to remove vehicles forming part of an unauthorised traveller encampment. In addition, bailiffs have a mix of statutory and common law powers to immobilise and tow away vehicles for the purposes of enforcing debts (including those arising out of unpaid taxes and court fines).

 

To me, that has always been the relevant bit which dispels any myths to the contrary. The parts in bold, and especially the part in red is key.

[HCEOs]

Yes indeed and a logical progression of that would be that the EA could not immobilize a vehicle if it were not on the highway or the debtors premises. So if it were in a supermarket car park or unadopted land for instance the car could not be either seized under section 16 of the TCoGR or on a highway under section 18.

 

I'm told this is due to change in the annual review as it was an unintended consequence of the hastily prepared legislation.

 

What I would add is that an HCEO, like an enforcement agent acting on a warrant, CAN ATTEND addresses other than those detailed on the writ. This is something that is continually misunderstood by others

 

For example, if the Notice of Seizure is sent to Mr Smith at his home the HCEO/enforcement agent may also attend, and take control of goods if possible, at an address where he believes the debtor usually carries on a trade or business. So if Mr Smith trades as Smith Builders at a Unit on the other side of town then the HCEO/EA has a right to attend that address also.

[Bailiff Advice]

 

Section 54: Offence of immobilising et

 

In addition, bailiffs have a mix of statutory and common law powers to immobilise and tow away vehicles for the purposes of enforcing debts (including those arising out of unpaid taxes and court fines)

 

 

 

Quite right. Paragraph 211 of the Explanatory Notes supporting PoFA 2012 almost mirrors the wording in the last paragraph of page 2 of the joint Home Office and Department of Transport's publication following the implementation of the Protection of Freedoms Act 2012.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98406/fact-sheet-part3.pdf

 

[Peterbard]

I'm told this is due to change in the annual review as it was an unintended consequence of the hastily prepared legislation.

.

 

Personally I would hope not.. Imagine doing the weekly shop at Tesco only to find that your car had been clamped on the car park, I wouldn't imagine the store would be to pleased either.

[Peterbard]

So, if he car is clamped on the debtors drive, when can it be removed?

 

It seems to me that it is treated in the same way as any other goods taken into control in the debtors premises. In other words the car cannot be towed after two hours, as it could if it were on the highway.

There would have to be another visit, "for the purpose of removal for sale of goods", presumable preceded by a notice as per section 25?

[Coughdrop]

POFA is a massive piece of legislation. I have never really understood the confusion over this part though, but I studied it in some depth when the whole issue of PPC's and clamping came into force. Indeed it was only fairly recently I backed away from involvement with this area.

 

It is not complex for once as long as one reads everything. It has been seen with various companies that they like to either skim read (thus missing some important parts), or interpret the legislation in a way which suits them. This is somewhat foolhardy and a sure way to end up in difficulties.

[Coughdrop]

Yes indeed Dodgeball. The two hour time limit applies to highways for obvious reason. If lawfully clamped (or otherwise immobilised) then it has been taken into control so a further visit to remove for sale, along with the extra fees associated with this would apply.

[Peterbard]

Much of the common law rights mentioned within the PoFR where rescinded when the TCE was introduced in any case, I suppose before this It may have bbn possible to confuse the function of the act, the inception of the TCE has clarified that it has no connection with EA activity.

[Coughdrop]

Perhaps that is where confusion was arising, I don't know. All seems pretty clear to me.

[Bailiff Advice]

So if it were in a supermarket car park or unadopted land for instance the car could not be either seized under section 16 of the TCoGR or on a highway under section 18.

 

If I can just clarify the position about sections 16.1 and section 18 as these are vitally important parts of the regulation.

 

Section 16.1 is entitled: Securing goods of the debtor on premises where found.

 

This section provides for the ways in which an enforcement agent may 'secure' goods that he has 'taken control of'. These are as follows:

 

a) by securing the goods in a cupboard, a room, a garage or an outbuilding.

 

b) if the premises are not occupied for residential purposes, the enforcement agent may secure the goods by remaining on the premises himself to guard the goods.

 

c) this clause allows the enforcement agent to 'secure the goods' by fitting an immobilisation device (usually a wheel clamp).

 

It needs to be made clear that an enforcement agent may not secure goods (which naturally include a motor vehicle) in any of the ways outlined above unless he abides by section 16.2 and 16.3 of the same regulations (details below).

 

Section 16.2 of the Taking Control of Goods Regulations 2013

 

This section is very welcome indeed and in particular ,with immobilisation of a vehicle.

 

This provides that if any person (whether or not the debtor) is occupying the premises at the time that goods are 'taken into control' that the enforcement agent cannot 'secure' the goods in any of the ways outlined above (including clamping a vehicle) if that person is to be deprived of adequate access to essential facilities, exempt goods or adequate means of 'entering or leaving the premises'. Thankfully this provision will now make a bailiff think twice before clamping a car outside of a house and leaving no space to either enter or leave the property.

 

Lastly, the enforcement agent may not secure goods (including by way of a wheel clamp) unless he also abides by section 16.3 which provides that he must leave the proper statutory notice.

[Peterbard]

If I can just clarify the position about sections 16.1 and section 18 as these are vitally important parts of the regulation.

 

Section 16.1 is entitled: Securing goods of the debtor on premises where found.

 

This section provides for the ways in which an enforcement agent may 'secure' goods that he has 'taken control of'. These are as follows:

 

a) by securing the goods in a cupboard, a room, a garage or an outbuilding.

 

b) if the premises are not occupied for residential purposes, the enforcement agent may secure the goods by remaining on the premises himself to guard the goods

 

c) this clause allows the enforcement agent to 'secure the goods' by fitting an immobilisation device (usually a wheel clamp).

 

It needs to be made clear that an enforcement agent may not secure goods (which naturally include a motor vehicle) in any of the ways outlined above unless he abides by section 16.2 and 16.3 of the same regulations (details below).

 

Section 16.2 of the Taking Control of Goods Regulations 2013

 

This section is very welcome indeed and in particular ,with immobilisation of a vehicle. This provides that if any person (whether or not the debtor) is occupying the premises at the time that goods are 'taken into control' that the enforcement agent cannot 'secure' the goods in any of the ways outlined above if that person is to be deprived of adequate access to essential facilites or adequate means of 'entering or leaving the premises'. Thankfully this provision will now make a bailiff think twice before clamping a car outside of a house and leaving no space to either enter or leave the property.

 

Lastly, the enforcement agent may not secure goods (including by way of a wheel clamp) unless he also abides by section 16.3 which provides that he must leave the proper statutory notice.

 

Yes indeed, there was common law which provided similar protection, nice to see it enshrined in legislature.

I remember a case some time ago where a bailiff secured goods in the debtors cupboard unfortunately the electricity meter was in there, a prepay meter, they were not able to maintain the supply when the credit ran out because they could not access the meter. This provision will prevent this also.

[Bailiff Advice]

Much of the common law rights mentioned within the PoFR where rescinded when the TCE was introduced in any case, I suppose before this It may have bbn possible to confuse the function of the act, the inception of the TCE has clarified that it has no connection with EA activity.

 

Under the Tribunal Courts & Enforcement Act 2007 it also provides that some 'common law' rules have also been replaced. These include:

 

Rules distinguishing between an illegal, an irregular and an excessive exercise of a power;

 

Any rules that would entitle a person to bring proceedings of a kind for which paragraph 66 of Schedule 12 provides (remedies available to the debtor);

 

Rules of 'replevin'.

 

Rules about 'rescuing goods'.

[Coughdrop]

Yes BA. I've posted the same on another site earlier this morning. The parts replaced are very clearly set down in the legislation.

[Bailiff Advice]

Yes indeed, there was common law which provided similar protection, nice to see it enshrined in legislature.

 

I remember a case some time ago where a bailiff secured goods in the debtors cupboard unfortunately the electricity meter was in there, a prepay meter, they were not able to maintain the supply when the credit ran out because they could not access the meter. This provision will prevent this also.

 

Absolutely right. I notice that I made an error (now corrected) in my earlier post. I forgot to state that section 16.2 also prohibits a bailiff from securing goods in any of the ways listed if doing so deprives a person occupying the property access to 'exempt goods'. This can also be important for many reasons. A bailiff cannot for instance clamp a vehicle if doing so would block another car that was 'exempt' from being used. This could include a vehicle that is displaying a blue badge, or a vehicle belonging to somebody else.

[Peterbard]

It is interesting to also see that the provision in16.3for leaving the statutory notices is the same section referee back to in section 18(taking control of goods on a highway), because of course both sections can refer to motor vehicles