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Debt Advice Handbook 14th edition

5. Complaints about bailiffs

• Taking court action
• Complaining to the bailiff
• Complaining to creditors
• Complaining to a professional organisation
• Complaining to the Ombudsman
• Court proceedings

If a client is unhappy about the conduct of a bailiff, s/he can threaten or take court action, or make a complaint. Note: many bailiffs now have body-worn video cameras that record all visits to premises. Ask the bailiff company to check the footage and request a copy to view yourself. This may resolve a dispute without any further action being necessary. If an enforcement agency operates a policy setting out how it will implement the use of body-worn video, the agency will be expected to ensure that its staff then act in accordance with that policy and may be sanctioned if they fail to do so.1King’s Lynn & West Norfolk Council (19 014 987)

 

1     King’s Lynn & West Norfolk Council (19 014 987)  »

Taking court action

In the past, if a warrant was invalid or there had been a procedural error, threatening county court action could help a client negotiate or have the enforcement process withdrawn. However, it is no longer possible to initiate a small claim on the basis that the bailiff’s misconduct constituted a trespass and so invalidates the entire enforcement process and associated costs. Instead, a client can apply on Form N244 to the appropriate court for an order awarding damages or the return of goods.1Sch 12 para 66 TCEA 2007 Given that the application is not heard under the small claims procedure, you should be aware that clients are at risk of having to pay costs if their application is unsuccessful.

You should always check whether any goods taken into control are exempt or belong to a third party (see here and here).

The fact that a person has settled a debt to stop further bailiff action does not mean that s/he has thereby waived any grievance over the conduct of the case. A debtor is still entitled to complain and it is the duty of the enforcement agent, and of the creditor using that agent and liable for their conduct, to investigate thoroughly.2LGO decision, London Borough of Waltham Forest (19 009 473)

 

1     Sch 12 para 66 TCEA 2007 »

2     LGO decision, London Borough of Waltham Forest (19 009 473)  »

Complaining to the bailiff

If there is a problem, always first complain to the bailiff company itself. Find out who the complaints manager is and write to her/him directly. Contacting the individual bailiff is rarely useful, other than to agree a ‘stay’ on recovery.

Bailiff firms have a duty to deal with complaints promptly under their trade body complaints procedures and under Taking Control of Goods: national standards. In addition, if they are acting for a public authority, such as a local authority or government department, the bailiffs should also be treated as ’public authorities’, with all the duties this implies. For example, they should give reasons for their decisions, so that if they refuse to treat a person as vulnerable, they should explain why.

Complaining to creditors

Bailiffs are generally called ‘enforcement agents’ now; this term emphasises the legal fact that they act as an ‘agent’ for a creditor, exercising the creditor’s enforcement powers on their behalf. Creditors, such as local authorities, are therefore responsible for what their agents do and should investigate complaints against them seriously. The fact that a case has been passed to bailiffs for enforcement does not divest the creditor of overall responsibility for the case. They are liable for the enforcement agents’ actions and they are also still expected to monitor cases and to deal with representations made directly to them rather than to the bailiff.1Plymouth City Council (18 013 949); Liverpool City Council (18 010 221) Although it is always worthwhile contacting the bailiffs to complain about their actions, it may be unproductive if the point at issue is whether they should have been instructed at all or if the terms of repayment set by the contract with the creditor are impossible for the client to meet. For instance, council tax contracts often require the bailiff to collect within three months. In such cases, the bailiffs are bound by their contract with the creditor to enforce the warrant issued to them, and other than asking them to ‘stay’ the action while negotiations are carried out, little else may be possible.

Taking Control of Goods: national standards requires creditors to act proportionately when using bailiffs. This includes their decision to use taking control of goods as an enforcement measure and what terms of repayment they consider to be acceptable. The guidance emphasises that bailiffs act as creditors’ agents and that a creditor is legally liable for them.

Creditors are also required to operate clear controls and complaints procedures. They should therefore always be notified about wrongful acts by their agents, as this may help bring pressure to bear in individual cases and may lead to improved monitoring more generally. Direct contact with a creditor is particularly important if the personal circumstances of the client are at issue. A complaint may be made about either the incorrect use of legal powers or a failure to follow a code of practice.

 

1     Plymouth City Council (18 013 949); Liverpool City Council (18 010 221) »

Complaining to a professional organisation

If a complaint to a firm of bailiffs is not dealt with satisfactorily, a complaint could be made to the bailiffs’ professional or trade organisation – the High Court Enforcement Officers Association and the Civil Enforcement Association (see Appendix 1). This can be particularly effective in cases of poor administration and customer care by bailiffs’ firms. However, when making a complaint, remember that these bodies exist to promote their members’ interests and are not entirely independent or impartial.

The complaints procedures can be found on the associations’ websites.

Both organisations also have disciplinary codes.

Serious breaches of professional ethics or of procedure may lead to an investigation and a penalty being imposed on the bailiff, such as being excluded from membership and, as a result, from the profession (although this is rare).

A complaint could also result in at least an apology and perhaps compensation, such as a refund of fees.

The Civil Enforcement Association also has a code of practice regulating members’ business practices, which may be of some assistance.

Complaining to the Ombudsman

Most creditors for whom bailiffs act are public sector bodies and are subject to supervision by an Ombudsman. If a creditor’s own complaints procedure fails to produce a satisfactory outcome for the client, a complaint can be made to the Local Government and Social Care Ombudsman (or Public Services Ombudsman for Wales), the Parliamentary and Health Service Ombudsman or to the Adjudicator’s Office (about HM Revenue and Customs).

In the case of local authorities, before a complaint is made to the Ombudsman, the case can be taken up by the local authority’s monitoring officer. This person is usually the chief legal officer and it is her/his duty to consider whether there has been maladministration or whether the local authority has acted unlawfully. It can sometimes be helpful to refer a case to the monitoring officer if the department in question is unwilling to intervene or negotiate, but you believe its bailiffs have acted unlawfully.

The starting point for damages awards from the ombudsman seems to be from between £100 and £200 for an incident such as a wrongful clamping or a mistaken visit or notice. Note: the Local Government Ombudsman recently confirmed that it has no power to stop a bailiff practicing and that the proper venue for such proceedings is by means of a certification complaint in the relevant county court (see here).

There are certain cases in which the LGO will not intervene. For example, if a person challenges a PCN, they will be directed to do that through the appropriate tribunals; if a person alleges that the bailiff damaged their car during clamping or removal (for example), that should be pursued by means of a county court claim for damages rather than an ombudsman complaint.1London Borough of Brent (20 004 923)

 

1     London Borough of Brent (20 004 923) »

Court proceedings

If a complaint has been unsuccessful, court proceedings can be initiated against the bailiffs in order to recover a client’s goods or obtain financial compensation. Because of the risk of costs linked to these claims, the most appropriate form of court action for many clients may be to complain against the bailiff’s county court certificate. This can be done if the bailiff’s conduct has indicated that s/he is not a ’fit and proper person’ to hold a certificate or does not have an adequate knowledge of the law.1The Certification of Enforcement Agents Regulations 2014, No.421 The client should apply to to the court on a simple complaint form (Form EAC2). There is no fee and the client is not liable for any costs, unless the judge thinks that her/his grievance was unfounded and an ’abuse of court process’.2r84.20 CPR

Note: although High Court enforcement officer staff may hold county court certificates, the High Court enforcement officers in charge of the company does not. They are authorised by the Lord Chancellor and there is no independent judicial oversight of the conduct of officers comparable to that in certification.

As just stated, High Court Enforcement Officers are authorised to act by the Lord Chancellor and other enforcement agents hold certificates from county courts. However, in the opinion of the Court of Appeal, these officers should all be regarded as ‘officers of the court’ and will be held to the high standards that this implies. In a 2020 judgment, the judges warned that the courts will not permit officers to act in a way that, although lawful and in accordance with enforceable rights, do not accord with the standards that society expects to govern the conduct of the court or its officers. The court will not permit its officers to act in a way in which it would be clearly wrong or improper for the court itself to act. That will include acting unfairly or improperly and taking steps that will disrupt the orderly process of enforcement or which will undermine the restrained and proportionate approach to the collection of debts which the legislation aims to encourage.3r84.20 CPR

 

1     The Certification of Enforcement Agents Regulations 2014, No.421 »

2     r84.20 CPR »

3     r84.20 CPR »