Enforcing the enforcers

ON 18 MARCH the Ministry of Justice (MoJ) published Regulation of Enforcement Agents, the Ministry's responses to a consultation undertaken in January 2007 upon the future regulation of private bailiffs. If the Ministry press release was to be believed, this was a momentous event. 'Dodgy bailiffs ruled out' it declared, while justice minister Maria Eagle went on to promise that unscrupulous bailiffs would in future be unable to 'threaten, bully or intimidate people'. The government promises a powerful independent regulator and qualifications to raise professional standards and to 'stamp out cowboy practices.' The actual published document was rather less dramatic in its conclusions.

Reform of bailiffs regulation

The government had canvassed opinion on a number of options for the reform of bailiffs' regulation. Its explicit preference was for the Security Industry Authority (SIA) to take on this role. The main attractions of this solution are that the SIA already exists, that it works in related fields (for example, wheelclamping) and that it would offer economies of scale by avoiding the expense of a wholly new regulator, thereby keeping licence fees low. Consultees were offered three choices '“ no change, a dedicated Enforcement Services Commission or regulation by the SIA.

By a narrow margin, those responding favoured the SIA. An equal number of respondents (all from the enforcement sector) rejected all three of the official options and instead proposed mandatory self-regulation in the form of a 'Bailiffs and Enforcement Agents Council'.

MoJ has basically dismissed this proposal out of hand. Self-regulation was considered and rejected during earlier consultations, in addition to which the idea attracted only sectional support in the present review. As a result the SIA remains the preferred option as a regulator of private bailiffs.

It is accepted that regulation of the bailiffs' industry must be improved. In the absence of any viable alternative, it also seems inevitable that the SIA will take on this role. Nevertheless we are still a long way from this actually taking place.

A full impact assessment is planned for autumn 2008 and MoJ has acknowledged that 'there is still a lot of preparatory work to do on the detail' which will in turn involve ongoing consultation with the interested stakeholders.

Complaints procedures

On one point of detail, however, we may be certain. The SIA does not operate complaints procedures for those industries which it licences and MoJ has expressly stated that this will not be a role of the SIA in respect of bailiffs either. Many of the respondents to the consultation stressed the importance of creating effective complaints handling processes as part of the new regulatory regime.

More significantly, it seems, the local government ombudsman (LGO) objected to the regulator having a complaints handling role as, it was argued, this would cause confusion for complainants. The MoJ has treated these comments very seriously and has undertaken to look at complaints procedures in detail.

From one perspective the LGO objections are mistaken and partial. It is true that the enforcement of two local authority liabilities '“ council tax and road traffic penalties '“ account for a large number of the complaints about bailiff action nationally, but the LGO's defence of its patch overlooks the range of other debts enforced by private bailiffs which are wholly outside its jurisdiction.

Enforcement agents also collect fines, child support maintenance, income taxes, NICs and VAT, commercial rent arrears and civil court judgments and it is plain that some complaints system must be in place for these too. Several will be covered by government departmental complaints procedures and by the parliamentary ombudsman or the adjudicator, it is true, but the recovery of business rents will be wholly outside all of these and will need some form of accessible redress.

LGO objections

From another perspective, though, the LGO objections are extremely significant and welcome. The LGO's assertion of a supervisory function over the activities of local authority creditors and their bailiffs is a reminder of a number of vital legal principles. In the enforcement of public sector debt, especially road traffic penalties and local taxes, it is all too often forgotten that the bailiffs act as enforcement agents for the council, as principal, and that, as a consequence, the bailiff will be expected to adhere to basic standards of administrative law.

As all readers will know, the LGO deals with complaints of injustice arising from maladministration on the part of local authorities. Maladministration includes the typical grounds for a public law challenge '“ that is, error, ultra vires acts and failure to act '“ as well as simple poor treatment of individuals. Because maladministration is such a wide term, it is has regularly been used by the LGO to investigate the detailed conduct of levies of distraint by bailiffs and to provide compensation for wrongful actions.

The ombudsman has criticised bailiffs for failing to provide breakdowns of charges or information on how to dispute them and for making charges that were hard to justify under the statutory scale, for failing to deal adequately with letters of complaint from the debtors and for threatening to seize a motor vehicle which was the property of a third party, despite the debtor having evidence of ownership. High-handed behaviour during levies has also been criticised '“ in one case, having managed to enter an empty house, the bailiffs rang numbers found in an address book in an attempt to locate the debtors, while in another complaint the bailiffs were criticised for failing to take further instructions when it was found that the debtors were disabled and for failing to calculate their charges correctly. Compensation of £150 was ordered and the council was required to review its procedures for identifying and handling cases of potential vulnerability.

Although the investigation process can be lengthy and levels of compensation are generally low, the intervention of an ombudsman can be valuable. It offers a debtors a non-judicial resolution to their problems combined with an examination of a public body's procedures and, possibly, an instruction that they revise these.

Two other points arise from the intervention of the LGO in the debate on bailiffs' regulation:

• We are reminded that, if public law principles apply, so does the ECHR. Although the actual articles of the ECHR may be of limited assistance in dealing with cases of distraint, the Strasbourg Court's principle of proportionality is of considerably more significance. This may be applicable at several stages in the enforcement process- in the creditor's choice of remedy, in the conduct of any seizure of goods and in the calculation of charges by the bailiff (especially in cases of fines and road traffic penalties).
• On a practical point, readers may wish to note the role of the local authority monitoring officer in dealing with complaints. Every council will employ a monitoring officer (usually the chief legal officer) whose duty is to review all actions and policies which may potentially be referred to the LGO or to judicial review. The author has certainly found the intervention of this officer, as a more independent and legally trained individual, extremely valuable in the resolution of bailiff complaints, obviating the need to escalate the dispute any further.

Interim measures

The MoJ admits that it will be some time before the SIA have any active role in regulating bailiffs. What will fill the gap in the meantime? It is intended that the enhanced and extended system of county court certification of bailiffs will provide an improved form of regulation of individuals until a national regulatory body is created. I discussed this in an earlier article (see SJ, 17 August 2007) and can only encourage readers to refer to the advice given there.

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