A visit from a bailiff or an enforcement officer can be a very frightening and distressing experience. This guide explains what a bailiff or enforcement officer can and cannot do if they visit your home and what your rights are. It provides general information only.
Bailiffs and enforcement officers are authorised to remove and sell a person’s possessions in order to pay money owed to a person or organisation i.e. to a creditor (A creditor is someone you owe money to). In some cases they may also have the authority to conduct evictions and to arrest people.
There are four main types of bailiff.
Different types of bailiffs have differing powers to collect debts. However, there are certain rules that apply to all bailiffs. Unless stated otherwise, this information applies to any bailiff.
Any man or woman can be a bailiff, providing they have legal authority to carry out their actions. Some creditors prefer to use certificated bailiffs to collect their debts. ''Certificated'' means that the firm of bailiffs has provided references to the county court and the bailiffs they employ are considered to be 'fit and proper' persons. Bailiffs collecting rent arrears and road traffic penalties must be certificated.
A bailiff must be legally authorised to collect the debt on behalf of the creditor. The authority is normally known as a 'warrant', or 'warrant of execution' if the bailiff is recovering money owed under a county court judgment.
Bailiffs used by the magistrates court to collect unpaid council tax, outstanding fines, compensation or unpaid maintenance will be acting on either a 'distress warrant' or a 'liability order' issued by the magistrates court.
If you are in arrears, creditors will sometimes send representatives to your home to try and negotiate repayments with you. These people might be called 'counsellors', 'collectors' or 'advisers'. They do not have powers to enter your home and seize your goods.
Bailiffs should provide identification or authorisation if you ask them to. Bailiffs collecting for rent must show their certificate from the county court if you ask them to. Bailiffs collecting unpaid council tax must show written authorisation from the local authority. From 1 April 1998, local authorities must send you a letter giving fourteen days notice of a proposed bailiff visit to collect council tax. County court bailiffs must issue a warning notice allowing seven days for you to pay.
The National Standards for Enforcement Agents recommends that enforcement should not be undertaken on Sundays, on Good Friday or on Christmas Day unless the court specifically orders otherwise or in situations where legislation permits it.
It also recommends that enforcement should only be carried out between the hours of 6.00 a.m. and 9.00 p.m. or at any time during trading hours and that existing legislation must be observed with enforcement agents being respectful of the religion and culture of others at all times. They should be aware of the dates of religious festivals and carefully consider the appropriateness of undertaking enforcement on any day of religious or cultural observance or during any major religious or cultural festival.
Most bailiffs do not have the right to force their way into a domestic property, i.e. a flat or a house, to seize your goods. The only exception is that bailiffs from HMRC can get a warrant to force entry, but this is very rare.
All other bailiffs have a right of peaceful entry only. This means that they cannot use force to enter your home, for example, by breaking a window or a door. However, they can enter your property through an open door or window (front and back) and can climb over fences and gates, but cannot break them down.
You do not have to let a bailiff into your house.
A bailiff cannot force their way past you if you answer the door.
If all your doors and windows are securely closed they will not be able to gain peaceful entry to your house unless you let them in.
Bailiffs are well aware of their limited powers and may use a variety of different means to gain entry peaceably. They may attempt to walk in as soon as a door is opened. They may ask if they can use your telephone to check if an arrangement is satisfactory with their office. They may simply ask you if you would prefer to discuss matters inside. You do not have to go along with any of these methods.
No. If a bailiff is accompanied by the police, they are only there to prevent a breach of the peace. You cannot be arrested for refusing to allow a bailiff into your home.
You cannot be imprisoned for not paying your debts. However, non-payment of council tax, child maintenance or magistrates court fines can lead to imprisonment if you 'wilfully refuse' to pay. This means that the magistrates must be satisfied that you have the money but choose not to pay. You should be required to attend a magistrates court ‘means enquiry hearing’ before this is decided. This gives you the chance to explain why you have not paid.
Once they have gained entry to your home, a bailiff will usually try to find and seize any goods of value belonging to the person who owes the debt or who is named on the warrant.
Once in the house the bailiff has the right to go into all rooms and can break open any locked door or cupboard inside your house. If the bailiff gains peaceful entry once, they have the right to call again and enter even without your permission, i.e. they can break in and remove your goods on any subsequent visits.
Any attempt to remove a bailiff from your property once they have gained peaceful entry is assault and you could be taken to court for it.
Once in the house, a bailiff will attempt to seize your goods in order to sell them off at public auction to raise money to pay the debt that you owe. The bailiff will make clear an intention to seize various items, either verbally, or by attaching a mark to them, or by touching them. This is sometimes called ‘levying distress or distraining upon goods’.
Once the bailiff has seized goods, they have a number of options. They can either remove items they have seized immediately from the property to be stored and eventually sold at public auction. Alternatively, they can leave someone on the premises to guard the items that have been seized or, in the case of bailiffs collecting rent, secure items that have been seized in your home. These last two options are very rarely used.
The most likely outcome is that the bailiff will ask you to sign a 'walking possession agreement'.
A walking possession agreement means that the goods that have been seized now legally belong to the bailiff and can be removed at any time. However, the bailiff may allow them to remain in your home and you can continue to use them providing you keep your side of the agreement, e.g. you make agreed payments.
In order for a walking possession order to be valid, a bailiff should have gained peaceful entry to the property and seized the goods. It is not enough for a bailiff to list items that they have seen through a window and push a walking possession order through the letterbox for you to sign and return. You should never sign a walking possession order in these circumstances. There is a daily charge for a walking possession order that you must pay, on top of the original debt you owe if they are sold. Remember that goods will be sold at public auction and can sell for as little as perhaps 10% of their original value. This means that if you owe £50, a bailiff may try to seize goods to the value of at least £500.
A bailiff must only seize goods that belong to the person who owes the money, although any goods in the house can be seized for distress or rent. In practice, many bailiffs will attempt to seize any goods of value at a house they visit and it will be up to the individual to prove ownership afterwards. If you have receipts showing someone else bought the goods then you should show these to the bailiff.
Bailiffs (except bailiffs acting on behalf of the magistrate's court - see below) cannot seize the following goods:
Bailiffs acting on behalf of the magistrates' court cannot seize the following goods:
It is not unlawful for you to remove goods or hide them before a bailiff visits your home unless the bailiff is distraining for rent. Remember that a bailiff, having gained peaceful entry, can return at any time and if they believe that goods have been removed or hidden prior to their visit, this is likely to happen.
If a bailiff seizes goods that are subject to a Hire Purchase agreement, seek advice urgently. Goods on HP do not belong to you until you make the final payment, but there may be circumstances in which they can be seized.
If goods have been seized wrongfully, then the owner of the goods can apply for them to be returned. You will need to get further advice about this.
The fees that bailiffs can charge for recovering money vary. There are fixed fees for bailiffs collecting council tax. All bailiffs’ fees (with the exception of magistrates' court bailiffs) can be looked at by the county court to see if they are reasonable or excessive. This is known as 'detailed assessment'. If you think that the bailiff's fees are excessive you should get further advice about this.
Remember you do not have to let a bailiff into your house or flat. If you make sure that all doors and windows are locked, the bailiff will not be able to gain access to your home. If they cannot get in, they cannot lawfully seize goods. A bailiff may call a number of times to try and gain entry. Eventually they will return the warrant to the court or local authority if they are unable to gain entry, or you do not have enough goods to pay off the debt and fees.
Secondly, get the matter out of the hands of the bailiff and back to the county court, local authority or creditor. The next paragraph tells you how to do this.
If the debt is an unpaid county court judgment you can apply to the court to stop (''suspend'') the warrant and vary the instalments you were ordered to pay by the court. You can apply to do this on form N245, available from the court. The form asks for details of your income and outgoings with a few personal details such as whether you work. You may have to pay a small fee at the court, unless you are getting income support, income-based jobseeker's allowance or tax credits and you may have to show proof that you are receiving these benefits.
The fee can also be waived if you are on a low income and payment of the fee would involve undue financial hardship. Applications for a fee reduction or waiver are dealt with entirely on an individual basis according to circumstance and there are no precise guidelines about when a fee should or should not be reduced or waived. In either case you must complete Form Ex160 and send or take it to the court with the N245.
Some county courts may refuse to suspend a warrant of execution until a walking possession agreement has been signed.
If bailiffs are collecting unpaid council tax it is often difficult to negotiate instalment payments with the bailiff or the local authority until the warrant is returned or withdrawn from the bailiff. However, you should try to negotiate instalment payments with the local authority and encourage them to withdraw the warrant from the bailiff. It is important to make clear that although you are unwilling to let the bailiff in, you are willing to make instalment payments at a rate that you can afford.
If you need help filling in forms or negotiating with creditors or bailiffs, see the 'further help' section below.
In January 2012, the Ministry of Justice, following its review of bailiff law, published an updated version of its report National Standards for Enforcement Agents (NSEA).
While the document is not legally binding it does set out what the Ministry of Justice regards as minimum standards, which it believes reflects the attitude of those in the industry and some major users.
The NSEA is endorsed by a range of central and local government departments and the bailiffs' trade bodies, all of whose members should comply with it.
The NSEA document sets out its recommendations in relation to the minimum standards it expects to be applied in situations where vulnerable persons are exposed to enforcement processes. It also sets out standards in relation to the responsibilities of creditors to both enforcement agencies and to debtors, the training, certification, statutory and financial requirements for enforcement agencies and mandatory complaints procedures of enforcement agencies.
To find out if McCambridge Duffy can help you regain control over your finances before matters are taken out of your hands, or to find out what kind of debt solution might be right for you, simply get in touch by filling in the form or call us on freephone 0800 043 3328.
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