The enormous increase in the number of PCNs issued by local authorities under the Civil Enforcement of Parking and Traffic Regulations regime has created an equally enormous rise in the use of bailiffs by the same local authorities to enforce unpaid charges.
Most people reasonably, but wrongly, think that bailiff activity concerns only drivers who deliberately don't pay the due penalties the charges and deserve the eventual attention of a bailiff. Too often a bailiff comes knocking at the door in respect of an alleged outstanding charge that they know nothing about, this resulting from with local authorities too-casually issuing warrants to bailiffs like confetti.
What goes wrong?
First, the documentation associated with Penalty Charge Enforcement is NEVER sent by recorded delivery – so when there are failures of postal delivery (which is more common that is widely known), a motorist will not have received vital paperwork and therefore missed the opportunity to take the appropriate steps to which he was entitled. One motorist was issued with almost 100 Notices to Owner over a period of several years not one of which was actually received at his home address. Also, with the massive extent of CCTV enforcement of parking and moving traffic offences, there has sometimes not even have been a Penalty Charge Notice found by the driver under the windscreen wiper.
Secondly, local authorities wrongly assume without question that the vehicle keeper data they request from the DVLA is accurate and up-to-date. DVLA information shows that that over 10% of their vehicle records contain errors which can and does lead to Warrants of Execution being issued to bailiffs to enforce at the wrong address. This problem is exacerbated when a vehicle keeper has recently moved with an innocent party now living at their old home.
A recent sale of an offending vehicle to an innocent new owner is also common.
Thirdly, because bailiff activity is a lucrative occupation details of a vehicle with a warrant attached is a valuable commodity to bailiffs, some bailiff companies fish for offending vehicles by whilst driving randomly around the streets in vans equipped with Automatic Number Plate Recognition (ANPR) cameras which is arguably contrary to Data Protection law.
Accordingly it is not uncommon for a motorist to find his vehicle wrongly (and even confiscated) with a visit from a bailiff when he or she has had no involvement whatsoever with any contravention concerning the authority and the bailiff
A subsidiary problem is that the laws applying to bailiff enforcement are complex and obscure. Further to that, the statutory fees that bailiffs are permitted to charge are probably not high enough to allow a sustainable business model for bailiff company operation so a significant proportion of the bailiff industry (to put it mildly) sail close to the wind with regard to their practices and charges.
Bailiffs – the council’s enforcer
NMAG accepts that local authorities do need an enforcement mechanism for recalcitrant payers and that bailiffs should be adequately remunerated. However, local authorities inescapably have a duty to manage their (private) bailiffs in a fully proper and lawful manner and to ensure that innocent citizens are never wrongly pursued.
In practice, because payment of the bailiff’s fees fall to the alleged debtor and not to the council there is little incentive to limit the number of warrants issued by councils. NMAG finds it scandalous that some local authorities even take a cut of the fees collected!
Equally alarming is that some local authorities even sub-contract the issuing of enforcement warrants to private companies who have business interests in the bailiffs.
Where a motorist finds himself dealing with a bailiff in circumstances where due process has not been complied with for one reason or another, the only course of action available for him or her is to make an Out of Time Witness Statement/Statutory Declaration to this effect. That is intended by Parliament to rectify unfortunate situations where a motorist finds himself wrongly prejudiced by scandalously, some local authorities sometimes ask the court to reject the Witness Statement/Statutory Declaration. The court (the part which deals with this matter – of which more below) ineffectually complies with the council's wishes without proper consideration of the issue and so the bailiffs keep coming.
The National Standards for Enforcement Agents
The National Standards for Enforcement Agents (NSEA) was introduced in 2003 and revised in January 2012. Amazingly at this present time, the NSEA is not legally binding and some bailiffs are seen to pay little heed to them.
The revised National Standards are wholly inadequate to deal with the commonplace enforcement abuses and NMAG is encouraged encouraged by the public Consultation of Bailiff Reform (which closed in April 2012) in which the Ministry of Justice sought views from the public on proposed amendments.
At around the time that the NSEA was introduced in 2003, the Office of Fair Trading (OFT) also introduced their Debt Collection Guidance. Unlike the Ministry of Justice, the OFT revised and updated their guidance in 2006 and, in March 2011, issued a Consultation on proposed changes to their Guidance which resulted in a revised and much-improved Debt Collection Guidance published in October 2011.
Unlike the NSEA which has only 13 pages, the OFT’s Debt Collection Guidance comprises 63 pages and is aimed at all businesses engaged in the recovery of consumer credit debts. The vast majority of enforcement work by certificated bailiffs is carried out on behalf of the public sector. It is shameful and inappropriate that the Ministry of Justice does not consider that enforcers collecting government debts should be subject to guidance similar to those enforcing consumer credit debts!
The statutory fee scale applicable to bailiff charges is frankly inadequate; if followed would be unlikely that bailiff companies could operate profitably. Also, the law that controls bailiffs is highly complex such that a typical high-street solicitor does not have sufficient specialist knowledge to provide adequate help those affected by sharp practice on the part of bailiffs.
All of this contributes to a dysfunctional business model. Accordingly too many bailiffs inflate their fees with phantom visits, unnecessary clamping and unnecessary confiscation of vehicles. Too often they lie to debtors and employ threatening even violent behaviour against persons who have little or no knowledge of their rights and the requirements for correct bailiff procedures.
The police are frequently called by recipients of frightening bailiff behaviour to defend them in these situations but, when they do the usual result is complete police indifference. The standard response of the police is that it is a civil matter in which they will not become involved, this being in disregard of the fact that some bailiff actions are illegal and readily apparent to a police officer in attendance. What is even worse is that sometimes the police then act to assist bailiffs even when after being called to help a debtor who is distressed being harassed.
NMAG’s problems with bailiffs
- Local authorities issue bailiffs warrants of execution like confetti as if they were trivialities – in 2011 they issued 1.3M
- Many bailiffs fabricate their charges to inflate them far beyond a level that represents a reasonable charge
- Many bailiffs openly behave badly and appear to think they are beyond the law. Their occasional appearances in court are treated as a minor nuisance and cost of their doing business
- Some local authorities do not adequately control their bailiffs and are indifferent to their wrongful activities
- The police routinely ignore what often amounts to systemic fraud, but in some instances wrongly actively assist bailiffs in their civil activities despite the remit of the police extending only to criminal conduct
NMAG recently made submissions to a Consultation of the Ministry of Justice “Transforming bailiff action”. Our key recommendations are:
- Bailiffs should be subject to an independent regulator (funded by the State), because central and local government are the main users of bailiff services and have no independence. The regulator should have power to investigate complaints.
Any debtor should be able to challenge bailiff conduct on a no-cost basis as for small claims proceedings. Complaints that a bailiff is not a fit and proper person to acquire or get or to retain a certificate should also be dealt with on a no-cost basis. This is essential to end the current grossly-unfair and unjust ‘David and Goliath’ litigation that deters justifiably-aggrieved debtors making complaints to the court.
- Bailiff fees should be raised moderately to reasonable levels but checks must be introduced to ensure they cannot exceed the statutory fees.
- The National Standards for Enforcement Agents should become mandatory.
- Local authorities should have a prescribed duty of care when issuing Warrants of Execution for civil parking or traffic contraventions. They should not:
- benefit from any share of a bailiff’s fees as some have done; this is an incentive to maximise the issuing of Warrants
- outsource the processing of enforcement paperwork to any company that has affiliation to a bailiff organisation as does the City of Westminster in London in relation to Phillips. This provides another incentive for the company to disregard reasonable remedies and refer cases instead to the bailiff affiliate to generate income
- Police should have basic training in bailiff law
The Traffic Enforcement Centre
Associated with the bailiff problems are the substantial shortcomings of the Traffic Enforcement Centre (TEC) which is an administrative office attached to Northampton County Court. The TEC processes the enforcement documentation associated with recovery in England and Wales of unpaid penalties; they issue electronically warrants of execution requested by local authorities to bailiff companies.
The original concept was the provision of an administrative service for local authorities but TEC developed – and retains – a mindset that it is acting solely for the benefit of the local authorities which they view as being their clients.
Beyond belief decision-making staff at TEC have been provided with delegated judicial authority to accept or reject Out of Time Witness Statements but, unlike their counterparts in county courts who also make orders, TEC staff are not constrained by established, objective and written criteria but are permitted to act on their own discretion which is extensively perverse and unjustifiable.
The decision-making performance of TEC is in part scandalous. There are ongoing instances of routine TEC rejections of Out of Time Witness Statements that have then been referred by affected motorists to County Court Judges who have repeatedly overturned the TEC decisions, these corrections by the Court incurring an additional cost to the unfortunate victims of an £80 Court fee The name of the TEC officer whose decision it is to make the rejection isn't even named and nor reason is given. This outrageous situation shows the TEC operation to be a charade that is unfit for purpose.
Over a 5 month period in 2008 TEC received 20,138 Out of Time applications. Of these, they rejected 9,297 (almost half) which resulted in 5,200 motorists appealing the refusals by completing an N244 Application. One involved a deaf woman who had stopped her car on a double yellow line because a young child was very sick. Another involved a council sending paperwork to the wrong address, even though it had been informed of the correct address.
These – and many others – are an indictment of wholly-inadequate performance by TEC. A charge of £75 has now been imposed for N244 Applications which has caused the number to have reduced by 95% which is a very disturbing situation.
Additional to this deplorable inadequacy of TEC which is contrary to natural justice There is no check or safeguard as to the entitlement of an applicant authority to deal with TEC in a given case. There are instances of TEC dealing with a county council applicant when the enforcement debt is due to a district council and not as falsely claimed to county council.
NMAG considers the following changes to be necessary:
- Remove all delegated judicial discretion from TEC staff. Every application for an Out of Time Witness Statement/Statutory declaration should be heard by a District Judge, preferably at the applicant’s local County Court.
- Because applications for Out of Time Witness Statements/Statutory Declarations are decided efficiently on paper there should be no fee charged to the motorist for filing an N244 to have a rejection reviewed.
- Local authorities should be prohibited from delegating to any commercial contractor responses to Out of Time Witness Statements/Statutory Declarations and N244 applications.
- Orders that accept Out of Time Witness Statements/Statutory Declarations should automatically require the local authority to refund all enforcement fees and charges, not merely the amount of the penalty. (Local authorities could seek to recover these enforcement costs from their bailiffs, if they wish).
- Whenever a new address is found for a defaulter after the service of a Notice to Owner, the local authority should be required to cancel the TEC registration and serve a new Notice to Owner at the correct new address.
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