Taking Control of Goods: National Standards

Taking Control of Goods: National Standards

Postby musashi » Sun Feb 11, 2018 7:04 pm

Taking Control of Goods: National
Standards
April 2014

Taking Control of Goods: National
Standards
April 2014
6 April 2014
Introduction
1.
These standards are intended for use by all enforcement agents, public and
private, the enforcement agencies that em
ploy them and the major creditors who
use their services. Private sector enforcement agents who are recovering debts
owed to the public sector perform the vast majority of enforcement work, and this
document has established a set of common standards to cover this activity
supporting the underpinning legislation. In order to improve the public's
perception of the profession, enforcement agents and those who employ them or
use their services, must maintain high standards of business ethics and practice.
2.
This national guidance does not replace local agreements, existing agency codes
of practice or legislation; rather it sets out what the Ministry of Justice, those in
the industry and some major users regard as minimum standards.
3.
We recognise this document is not legally binding, but offer it as a helpful tool for
the industry and for creditors which, it is hoped, will inform their own
arrangements and against which they may benchmark their professional
standards.
Terms used
4.
In this document we have used the following terms:
Creditor:
this includes - a local authority, major or frequent judgment creditors in
the civil courts, Government Departments and HM Courts and Tribunals Service to
whom financial penalties are paid, and landlords undertaking the commercial rent
arrears recovery (CRAR) process. .
Debtor:
a person who owes a sum of money - this may be a judgment debt or a
criminal financial penalty fine which is in default or a liability order. The debtor
should behave lawfully and is encouraged to co-operate with the enforcement
agent. The term “debtor” where appropriate and applicable, also covers individuals
who are being wrongly pursued for a debt in respect of which they are not the
actual debtor.
Enforcement:
we mean the lawful process of warrant or writ execution, and taking
control of goods.
Enforcement Agency:
the business that employs enforcement agents, unless
specifically indicated (where different
arrangements exist); we also include those
public sector organisations that have in-house enforcement agents.
Enforcement Agent:
someone who is responsible for the enforcement of court
orders against goods (warrants of control) or the person (arrest warrants); we
include those employed in the public and private sector, bailiffs and High Court
Enforcement Officers.
Creditors' Responsibilities
5.
In order for the enforcement process to work effectively, creditors must be fully
aware of their own responsibilities. The primary purpose of this guidance for
creditors is to draw their attention to their responsibilities when instructing and
dealing with enforcement agents/agencies to recover debts on their behalf.
6.
The creditors responsibilities should be observed and set out in terms of
agreement with their enforcement agent/agency. They should consider carefully
any specific requirements for financial guarantees so that these are adequate,
fair and appropriate for the work involved.
7.
Creditors should remember that enforcement agents are acting on their behalf
and that ultimately they are responsible, and accountable, for the enforcement
agents acting on their behalf.
8.
Creditors should act proportionately when seeking to recover debt, taking into
account debtors’ circumstances.
9.
Creditors must notify the enforcement agency of all payments received and other
contacts with the debtor, including repayment agreements made with the debtor.
10. Creditors have a responsibility to tell the debtor that if payment is not made within
a specified period of time, action may be taken to enforce payment.
11. Creditors agreeing the suspension of a warrant or making direct payment
arrangements with debtors must give appropriate notification to and should pay
appropriate fees due to the enforcement agent for the work they have
undertaken.
12. Creditors must not issue a warrant knowing that the debtor is not at the address,
as a means of tracing the debtor at no cost.
13. Creditors must provide a contact point at appropriate times to enable the
enforcement agent or agency to make essential queries, particularly where they
have cause for concern.
14. Creditors must consider the appropriateness of referring debtors in potentially
vulnerable situations to enforcement agents and, if they choose to proceed, must
alert the enforcement agent to this situation.
15. Creditors should ensure that there are clear protocols agreed with their
enforcement agents governing the approach that should be taken when a debtor
has been identified as vulnerable.
16. Should a debtor be identified as vulnerable, creditors should be prepared to take
control of the case, at any time, if necessary.
17. Creditors should inform the enforcement agency if they have any cause to
believe that the debtor may present a risk to the safety of the enforcement agent.
18. Creditors should have a clear complaints procedure in place to address
complaints regarding their own enforcement agents or external enforcement
agents acting on their behalf.
Professionalism and conduct of the enforcement agent
19. Enforcement agents must act within the law at all times, including all legislation
and observe all health and safety require
ments in carrying out enforcement. They
must maintain strict client confidentiality and comply with Data Protection
legislation and, where appropriate, the Freedom of Information Act.
20. Enforcement agents must not be deceitful by misrepresenting their powers,
qualifications, capacities, experience or abilities, including, but not restricted to;

Falsely implying or stating that action can or will be taken when legally it
cannot be taken by that agent

Falsely implying or stating that a particular course of action will ensue before
it is possible to know whether such action would be permissible

Falsely implying or stating that action has been taken when it has not

Falsely implying or stating that a debtor refusing entry to a property is classed
as an offence.
21. Enforcement agents must not act in a threatening manner when visiting the
debtor by making gestures or taking actions which could reasonably be
construed as suggesting harm or risk of harm to debtors, their families, appointed
third parties or property.
22. Enforcement agents should always produce relevant identification to the debtor,
such as a badge or ID card, together with any written authorisation to act on
behalf of the creditor (in appropriate debt types).
23. Enforcement agents, for the purpose of taking control of goods shall, without the
use of unlawful force, gain access to the goods. The enforcement agent must
produce all relevant notices and documents, such as controlled goods
agreements, that are required by regulations or statute.
24. Debtors must not be pressed to make unrealistic offers and should be asked to
consider carefully any offer they voluntarily make and where possible refer to free
debt advice.
25. Where a creditor has indicated they will accept a reasonable repayment offer,
enforcement agents must refer such offers onto the creditor.
26. Enforcement agents must carry out their duties in a professional, calm and
dignified manner. They must dress and speak appropriately and act with
discretion and fairness.
27. Enforcement agents must not act in a way likely to be publicly embarrassing to
the debtor, either deliberately or negligently (that is to say through lack of care)
28. Enforcement agents must act in accordance with the Human Rights Act 1998 and
the Equality Act 2010. They must not discriminate unfairly on any grounds
including those of age, disability, ethnicity, gender, race, religion or sexual
orientation.
29. In circumstances where the enforcement agency requires it, and always where
there have been previous acts of, or threats of violence by a debtor, a risk
assessment should be undertaken prior to the enforcement agent attending a
debtor's premises.
30. Where enforcement agents have identified vulnerable debtors or situations, they
should alert the creditor and ensure they act in accordance with all relevant
legislation.
31. Enforcement agents must not seek to enforce the recovery of fees where an
enforcement power has ceased to be exercisable.
Statutory or Financial Requirements for Enforcement Agencies
1
32. Enforcement agencies should ensure that audited accounts are available, where
required by law. An annual audit of the agency's accounts by independent
accountants should be undertaken at least once a year for businesses where this
is appropriate.
33. Enforcement agencies must comply with statutory obligations, for example, the
Companies Act, HMRC provisions, Data Protection, Health & Safety etc.
34. A separate account for monies due to the creditor should be maintained and
accurate books and accounts should be kept and made available to establish
monies owed to the creditor.
35. Enforcement agencies must keep a complete record of all financial transactions
in whatever capacity undertaken.
36.
Enforcement agencies must maintain suitable and comprehensive
insurance cover for both professional indemnity and other risks including
employer's liability and public liability.
Training and Certification
37. Enforcement agencies must ensure that all agents, employees and contractors
are provided with appropriate training to ensure that they understand and are
able to act, at all times, professionally and within the bounds of the relevant
legislation. This training should be provided at the commencement of
employment and at intervals afterwards to ensure that their knowledge is kept up
to date.
38. Professional training/assessment should be to a standard that complies with
relevant legislation.
39. Enforcement agencies must ensure that legislation restricting the enforcement
activity to enforcement agents is complied with
2
40. Enforcement agencies must ensure that all employees, contractors and agents
will at all times act within the scope of current legislation, for example The
Companies Act, HMRC provisions, Data Protection, Health and Safety, Equality,
and Human Rights Act etc, and have an appropriate knowledge and
understanding of it and be aware of any statutory obligations and provide
relevant training.
41. Enforcement agents should be trained to recognise and avoid potentially
hazardous and aggressive situations and to withdraw when in doubt about their
own or others' safety.
42. Enforcement agents should be trained to recognise vulnerable debtors, to alert
creditors where they have identified such debtors and when to withdraw from
such a situation.
1
Separate provisions regarding financial accounting and insurance may apply to public sector
organisations who directly employ their own enforcement agents
2
The Tribunals, Courts and Enforcement Act 2007.
Complaints/Discipline
43. Enforcement agencies must operate complaints and disciplinary procedures with
which their agents must be fully aware of.
44. The debtor should be able to easily find out how to make a complaint and
obstacles should not be placed in their way.
45. The complaints procedure should be set out in plain English, have a main point of
contact, set time limits for dealing with complaints and include an independent
appeal process where appropriate. A register should be maintained to record all
complaints and complainants should be notified of the outcome of disputes.
46. Enforcement agents/agencies are encouraged to make use of the complaints and
disciplinary procedures of professional associations such as The Civil
Enforcement Association or the High Court Enforcement Officers Association.
47. The enforcement agent must make available details of their own and the
creditor’s complaints procedure on request or when circumstances indicate it
would be appropriate to do so.
Information and confidentiality
48. All notices, correspondence and documentation issued by the enforcement
agent/agency must be clear, complete and unambiguous and to the satisfaction
of the creditor. They must not use unhelpful legal or technical language and
should comply with relevant legislation.
49. On returning any un-executed warrants, the enforcement agent should report the
outcome to the creditor and provide further appropriate information, where this is
requested and, where appropriate, paid for by the creditor.
50. All information obtained during the administration and enforcement of warrants
must be treated as confidential between the enforcement agent, debtor, the
creditor and any third parties nominated by the debtor.
51. Enforcement agents should provide clear and prompt information to debtors and
where appropriate, creditors.
52. Enforcement agents should, so far as it is practical, avoid disclosing the purpose
of their visit to anyone other than the debtor or a third party nominated by the
debtor, for example an advice agency representative. Where the debtor is not
seen, the relevant documents must be left at the address in a sealed envelope
addressed to the debtor.
53. Enforcement agents should make debtors aware of the possible additional costs
of enforcement which will be incurred if further action becomes necessary. If a
written request is made, an itemised account should be provided.
54. Enforcement agents will clearly explain and give in writing, the consequences of
taking control of a debtor's goods.
Times and Hours
55. Enforcement agents should be respectful of the religion and culture of others at
all times. They should carefully consider the appropriateness of undertaking
enforcement on any day of religious or
cultural observance or during any major
religious or cultural festival.
56. Enforcement action should only be carried out between the hours of 6.00am and
9.00pm, or at any time during trading hours, unless otherwise authorised by a
court. Existing legislation must be observed.
Mode of entry
57. Enforcement agents should not seek to gain peaceable entry to premises under
false pretences; for example asking to use the toilet, or to use the telephone.
They should be clear as to why they are seeking entry to the premises.
58. Enforcement agents should only enter premises as part of the enforcement
process.
59. Enforcement agents must only use a door or usual means of entry to enter
premises.
60. A power to enter premises by force
exists for the execution of High Court and
County Court debts at business premises or at any premises where an
enforcement agent is enforcing criminal penalties. This power should only be
used to the extent that it is reasonably required and only after the debtor has
been warned that the power exists and the consequences of a wilful refusal to
co-operate.
61. A power to re-enter premises by force applies to both residential and business
premises where a controlled goods agreement is in place and the goods remain
on the premises but the debtor has failed to
comply with the repayment terms of
the controlled goods agreement. This power should only be used to the extent
that it is reasonably required and only after the debtor has been given notice of
the enforcement agent’s intention to re-enter.
Goods
62. Enforcement agents must only take goods in accordance with the appropriate
regulations or statute. In addition creditors may agree other restrictions with
agents acting on their behalf.
63. Enforcement agents must ensure that goods are handled with proper care so that
they do not suffer any damage or cause damage to other goods or property,
whilst in their possession. Enforcement
agents should have insurance in place for
goods in transit so that if damage occurs this is covered by the policy.
64. Enforcement agents should not remove anything clearly identifiable as an item
belonging to, or for the exclusive use of a child (person under the age of 16) or
items clearly identifiable as required for the care and treatment of the disabled,
elderly and seriously ill.
65. A detailed and complete receipt for the goods removed should be given to the
debtor or left at the premises in accordance with the appropriate regulations.
66. Enforcement agents should take all reasonable steps to satisfy themselves that
the value of the goods taken into control to cover the sum outstanding is
proportional to the value of the debt and fees owed.
67. Enforcement agents should not take control or remove goods clearly belonging
solely to a third party not responsible for the debt. Where a claim is made, the
third party should be given clear instructions on the process required to recover
their goods.
68. Enforcement agents should be aware of circumstances where a “no goods”
valuation may be appropriate – for example where no goods of sufficient value
have been identified; or where the removal of goods would lead to severe
hardship for the debtor. In such instances the enforcement agent should make
the creditor aware of this situation.
Multiple warrants
69. Where enforcement agents have multiple warrants for a single debtor, an
enforcement agent must take control of goods, and sell or dispose of these
goods, on the same occasion except where it is not practical to do so.
Vulnerable situations
70. Enforcement agents/agencies and creditors must recognise that they each have
a role in ensuring that the vulnerable and socially excluded are protected and that
the recovery process includes procedures agreed between the agent/agency and
creditor about how such situations should be dealt with. The appropriate use of
discretion is essential in every case and no amount of guidance could cover
every situation. Therefore the agent has a duty to contact the creditor and report
the circumstances in situations where there is evidence of a potential cause for
concern.
71. If necessary, the enforcement agent will advise the creditor if further action is
appropriate. The exercise of appropriate discretion is needed, not only to protect
the debtor, but also the enforcement agent who should avoid taking action which
could lead to accusations of inappropriate behaviour.
72. Enforcement agents must withdraw from domestic premises if the only person
present is, or appears to be, under the age of 16 or is deemed to be vulnerable
by the enforcement agent; they can ask when the debtor will be home - if
appropriate.
73. Enforcement agents must withdraw without making enquiries if the only persons
present are children who appear to be under the age of 12.
74. A debtor may be considered vulnerable if, for reasons of age, health or disability
they are unable to safeguard their personal welfare or the personal welfare of
other members of the household.
75. The enforcement agent must be sure that the debtor or the person to whom they
are entering into a controlled goods agreement understands the agreement and
the consequences if the agreement is not complied with.
76. Enforcement agents should be aware that vulnerability may not be immediately
obvious.
77. Some groups who might be vulnerable are listed below. However, this list is not
exhaustive. Care should be taken to assess each situation on a case by case
basis.

the elderly;

people with a disability;

the seriously ill;

the recently bereaved;

single parent families;

pregnant women;

unemployed people; and,

those who have obvious difficulty in understanding, speaking or reading
English.
78. Wherever possible, enforcement agents should have arrangements in place for
rapidly accessing interpretation services (including British Sign Language), when
these are needed, and provide on request information in large print or in Braille
for debtors with impaired sight.

Musashi.
It's still fucked, isn't it?
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