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Debt Advice Handbook 14th edition

6. Emergency action

• Refuse the bailiff access
• Get the warrant withdrawn from the bailiff
• Raise a lump sum to clear the debt

People often only seek advice when the ’crunch’ comes, such as a visit from a bailiff. In order to gain time so that a client’s finances can be investigated and an overall repayment strategy devised, you may need to consider one or more of the following emergency measures.

Refuse the bailiff access

It is common for a debt adviser to be first consulted when a client hears from bailiffs. If this is the case, the best advice to protect a client’s goods from being taken into control is to ensure that the bailiffs are not given access to the property and for the client to remove any goods that are outside the home (especially cars) to a place where they will not be seen.

Although it is not wholly clear from the legislation,1Sch 12 para 14 TCEA 2007 a 2019 decision of the Local Government Ombudsman confirmed that it is still the lawful right of someone in debt to refuse to open a door to a bailiff or to allow her/him across the threshold.2Bristol City Council (18 005 149) A very small number of debts allow bailiffs to force entry (see here), but these powers are seldom used.

Note: there is a very slight risk that these actions may constitute the offence of ’obstructing’ an enforcement agent, and some bailiffs might argue this.3Sch 12 para 68 TCEA 2007 However, Taking Control of Goods: national standards advises that if an enforcement agent implies or states that refusing entry is an offence, this is a misrepresentation of the bailiff’s powers.4Ministry of Justice, Taking Control of Goods: national standards, April 2014, para 20

Bailiffs try to visit more than once to gain access (and they have 12 months in which to do so), so clients should be advised to be vigilant, and keep doors locked. If the client lives in a block of flats or a house in multiple occupation, a bailiff may be discouraged from making repeat visits if it appears that gaining access may be difficult. If bailiffs are unable to enter, they will eventually return the instruction to the creditor indicating whether or not there are sufficient goods to satisfy the debt. They rely on what they can see through windows to decide this.

If the bailiff fails to raise the amount of money due, however, this is not the end of the recovery process; other means are tried. Debts for fines and local taxes often go back to the court for it to consider committal to prison (see here and here). A client can be given a prison sentence for ’wilful refusal’ or ’culpable neglect’ to pay (see here) and a bailiff may threaten that failure to give access will be construed by the court as wilful refusal. However, there are no reported instances of anyone being committed to prison on this ground.

Note: if bailiffs have already gained access or taken control of goods, they might subsequently force their way in to remove goods for the same debt (see here). In addition, certain bailiffs can force initial entry (see here).

 

1     Sch 12 para 14 TCEA 2007 »

2     Bristol City Council (18 005 149) »

3     Sch 12 para 68 TCEA 2007 »

4     Ministry of Justice, Taking Control of Goods: national standards, April 2014, para 20 »

Get the warrant withdrawn from the bailiff

In all cases, you should aim to remove the matter from the hands of the bailiff and place it back for consideration by the creditor.

In the civil courts, the client should apply immediately to suspend the warrant. For county court action, this is done on Form N245 (see here). For High Court action, an application for a variation of the judgment and a stay of execution should be made on Form N244. Magistrates’ courts do not have such a power, but it may be worthwhile speaking to the court’s fines officer to see what scope s/he has to intervene. It may be possible for the fines officer to refer the case back to the magistrates for a further hearing.

In situations where there is no power to suspend a warrant through the courts and the client cannot afford to pay a lump sum, the only option may be to persuade the creditor that the warrant should be withdrawn because of the client’s personal or financial circumstances. This may be because s/he should be treated as vulnerable or because s/he comes into one of the categories of people who are exempt from this method of enforcement under the creditor’s code of practice. In many cases, payment terms must be negotiated at the same time, and often these will be for instalments of sums much lower than it would have been economic for the bailiff to collect.

Raise a lump sum to clear the debt

If the tactics in this section have been unsuccessful, or if the goods have already been taken into control, the client may need to pay the debt in full to avoid her/his goods being sold. This may violate certain basic principles of money advice, but is often the only option that a client is prepared to consider. It may also make financial sense, as the replacement cost of the items in question may be much more than the total required by the bailiffs. See Chapter 7 for ways of maximising income.