(17/09/2014) The fact that a bailiff can turn up at your door to demand payment can be extremely worrying. If this happens to you, it is important that you understand your rights in order to deal with the situation properly.
Bailiff or debt collector?
There are two types of firms that could turn up at your door: a bailiff or a debt collector. If they are a debt collector, they have no powers to enforce the debt. If a bailiff turns up they will need to announce themselves as a bailiff.
There are three types of bailiffs:
- County Court
- Certified
- Private
You do not have to open the door to a bailiff, but once the door is open, they may attempt to force their way past to gain ‘walking possession’ of goods in your house, car or place of business. At this point they can take control of your goods, although they may still leave them in your property. The only bailiffs who can force entry are County Court bailiffs.
What is a debt collector?
If your debt is unsecured (e.g. a credit card, overdraft, or mobile phone bill) your creditors cannot send bailiffs, but they can send a doorstep collector. If they do come to your door, then ask them to leave and request that they contact you by letter only.
If you have missed between three and six payments, you could be deemed to be in default on your original agreement. Interest can continue to be added to your account and the money debited from the related accounts.
Your debt can be passed to a debt collection agency, but they do not have any more powers than the firm to whom you owe money. The company can approach the courts and apply for a county court judgement. The court will set repayment terms for the debt. Once set, it is important that you adhere to these terms.
A Warrant
A bailiff must ensure that a legal professional collects the debt, known as a warrant of execution, allowing the bailiff to recover goods to pay the judgement plus any fees or court costs. The warrant can only be issued if a related county court judgement (CCJ) payment has been missed.
Notice
If a warrant has been issued, then the court will have to give you seven days’ notice in writing that bailiffs will be visiting your home. If you receive such a notice, contact the court immediately and request an N245 form. The form allows you to suspend the visit or to renegotiate any repayments, but you should act immediately.
When can they force entry?
In most circumstances bailiffs cannot force entry to your home – including with eviction orders, persistent unpaid court fines or unpaid taxes. These can be issued by High Courts, County Courts or Magistrates’ Courts.
In normal situations, bailiffs have the right of peaceful entry, meaning they cannot break glass or doors, but they can gain access through an open window, door or climb over a fence.
If it is a peaceful entry, then you do not have to let the bailiff into your home. Once the firm has entered your home, they can come back at any time and collect the goods.
Levying of goods
A bailiff is allowed to levy your goods i.e. to seize, secure and then sell to recover the debt. The goods will be sold at a fraction of the cost than they were purchased for. The bailiffs are allowed to take sufficient goods to cover the cost of the debt – although it’s worth remembering .
The bailiffs should take an inventory of the goods. After the goods are removed, they should leave a formal notice, called the ‘notice after entry’ or ‘taking control of goods’.
What a bailiff cannot take
The bailiff cannot take items that are not owned by the debtor – ‘tools of the trade’ (but only up to the value of £1350) – which are used for you to earn a living and basic essentials such as a bed. You are required to prove that the goods belong to someone else.
Where can they remove the goods?
A bailiff can take goods from your home, where you run your business or a public highway. If they want to take goods from anywhere else, then court permission is required, specifying the premises and must be included in the court order.
If you live in a flat share, only goods from a room used exclusively by you can be removed.
Controlled goods agreement
This is an agreement where you authorise that the goods are taken away and sold. At this point the ownership of the goods transfers from you to the bailiff. As the goods are now the property of the bailiff, they can then be removed at anytime.
These goods can be left at your property if you honour the agreement to pay off the debt. The agreement does not have to be written and can be verbal.
Complaining about bailiffs
In the first instance, if there is an issue with the conduct of the bailiffs, you should contact the bailiff firm, in writing either by email or letter so that you have a written copy.
If you are complaining because they have taken too many goods, or the goods weren’t yours you must contact the bailiff firm within seven days. The bailiff must then contact the creditor within three days to seek their opinion. The creditor then has seven days in which to decide whether or not the goods were taken unlawfully.
If the creditor decides the goods were taken unlawfully, then they will be returned, but if your complaint is rejected, then you will need to go to the court to appeal the decision.
If the bailiff ignores your complaint, then complain directly to your creditor. You may also want to complain if the creditor’s code of conduct has been broken or if they have acted illegally.
If it is your local council, then complain to their legal department, or if it’s national insurance debt, complain to the HMRC National Insurance Contributions Office.
You can also make a complaint to the court. For High Court Enforcement complaints, you should complain to High Court Enforcement Officers’ Association (HCEOA). For county courts, complain to bailiff manager at the court and for magistrates courts to the clerk of the court.
If you are still not satisfied with the response from the courts, you can complain to the Home Office or the Parliamentary and Health Service Ombudsman.
For issues such as a bailiff wrongly selling your belongings or you financial losses suffered as a result of the bailiff making a mistake, your final option is to take the firm to court.