Vehicle Immobilising

As a result of the lobbying of the Security Industry Authority (SIA) and Government departments by the ESA and ACEA, and following a meeting last week between representatives of the SIA, ESA and ACEA, the SIA has reconsidered the licensing of enforcement agents for the immobilising and/or removal of vehicles from private land. Following last Monday's meeting the SIA took further advice from the Treasury Solicitor on this matter and has issued the following statement: "The costs associated with the removal and secure storage of a vehicle seized during the execution of a warrant do not constitute a charge imposed specifically and solely for the release of the vehicle. Therefore, as they are considered a legitimate cost of the warrants' execution, and not a 'release fee', such activity is not licensable under the PSIA 2001. "The position in respect of a separate fee specifically for the release of the vehicle that does not relate to the cost of executing the warrant would however still fall within the remit of the PSIA and be a licensable conduct." In brief, provided enforcement agents do not charge a specific fee for the release of a vehicle immobilised on private land, they do not fall within the provisions of the PSIA and therefore, do not require a licence. The SIA has also stated that it has circulated this decision to its compliance and investigation teams so that they are fully aware of the rights of enforcement agents.


Progress on the Tribunals, Courts and Enforcement Bill

DCA Ministers have given a commitment to publish the Tribunals, Courts and Enforcement Bill, in draft, before the end of the current Parliamentary session in November. The public will be given three months to comment on its provisions and, in order for that to be achieved, the Department hopes to publish the Bill before the start of Parliament's summer recess in July (Bills cannot be published when Parliament is in recess). Unfortunately, the good news stops there as, once the consultation exercise is complete, the Bill will sit on a shelf unless and until a slot is found for it in the Parliamentary timetable. Recent comments from within Government about the Bill looking "tired" do not give great cause for hope that the Bill will ever reach the statute book.


DCA Publishes Draft Enforcement Bill

The Department for Constitutional Affairs (DCA) has today announced publication of the long-awaited draft of the Tribunals Courts and Enforcement Bill. The draft Bill contains provisions for civil enforcement which follow-on from the Report of Professor Jack Beatson of Cambridge University in July 2000 and the Government White Paper entitled Effective Enforcement published in March 2003. As it is a draft Bill the DCA has invited comments. Responses should be sent to: The Tribunal Reform Team, 1st Floor, 4 Abbey Orchard Street, London SW1P 2HT by no later than 22nd September 2006. It must be emphasised that the Bill will only ever become law if time is found for it to be included in the parliamentary timetable. Given both the DCA's and the Government's priorities in other areas, for the present at least, this seems unlikely.


Tribunals Courts and Enforcement Bill

The Tribunals Courts and Enforcement Bill, which was included in the Queen's Speech on 15th November 2006, was given its Second Reading in the House of Lords on 29th November. Many of the peers expressed concern and disappointment that the Government had not included the provisions for a regulatory and licensing regime as originally set out in the White Paper: Effective Enforcement. Concern was also expressed about the proposal to exempt county court bailiffs and other Crown employees who carry out enforcement work from the need to hold a certificate. The Government has previously stated that it intends the new regime should apply to enforcement agents in both the public and private sector, but now appears to have gone against its previously expressed intentions. It claims that Crown employees are subject to civil service disciplinary procedures. However, this is to completely miss the point. The general public will have little confidence in a system where there is one rule for the private sector and another, seemingly less rigid rule, for the public sector. The ESA fully supports those peers who asked the Government to reconsider its decisions about omitting regulation from the Bill and granting exemption from certification to Crown employees. The Grand Committee stage of the Bill will take place on 13th and 14th December.


Tribunals Courts and Enforcement Act 2007 -

The Tribunals Courts and Enforcement Act 2007 received the Royal Assent on 19th July 2007. However, for the present there will be no change to the enforcement industry. The Ministry of Justice (MoJ) will be working on a consultation paper in respect of the regulations referred to in the Act and will publish this in the Autumn when Parliament returns from its Summer recess. There remain a number of issues of concern to the industry including the proposals for an up-front fee and a suggested time-limit of three months for taking control of goods. The ESA will be lobbying the Government on these and other issues during the coming months. Earlier in the year the Government published a consultation paper on the regulation of enforcement agents. Three options were put forward in the paper; no change, a dedicated regulatory body, and the Security Industry Authority (SIA). The Government has made no secret of its preference for using the SIA. It will be publishing its comments on the response to the consultation paper fairly shortly but it is expected to come down in favour of using the SIA. Assuming this to be the case the Home Office will table an Order in Parliament under the provisions of the Private Security Industry Act 2001 to extend the authority of the SIA to regulate the enforcement industry. The Order will be tabled either in the coming Autumn or the early Spring of next year. Bearing in mind the previous track record of the SIA the enforcement industry is concerned as to whether it will have the ability to become the regulatory body. This is especially so bearing in mind that it is on record as describing itself as a licensing authority and NOT a regulatory body. This Association will be monitoring developments very closely over the coming months.


BBC Whistleblower Programme

Anyone with any interest in the enforcement industry will be aware of the BBC Whistleblower programme on 26th September 2006. This involved a journalist going undercover with two bailiff firms for a total of nine months, working with bailiffs to reveal their methods of operation. There can be few people who were not appalled by the tactics and statements of the bailiffs appearing on the programme. The ESA condemns the behaviour of these individuals which does not represent the actions and views of the overwhelming majority of those employed within the industry. Neither of the firms involved is a member of the ESA. The majority of certificated bailiffs/enforcement officers are doing a very good job in often difficult circumstances. Bailiffs do not expect to be popular with the public. However, they are performing an essential service in trying to ensure that people face up to their responsibilities in paying their dues; whether they be parking fines, council tax, child support or any of the other responsibilities imposed upon us by the various statutory bodies. Throughout its 100 year history, the ESA has sought to uphold and improve the standards of enforcement and it continues to do so today. The Association’s complaints procedure imposes penalties on members who fall below the standards required. The ESA also endeavours to find practical ways of resolving disputes between debtors and bailiffs. The Association has been a strong supporter of the Government’s Enforcement Review and has given clear and consistent support to the proposals for a regulatory/licensing regime. It deeply regrets the Government’s decision to exclude such a regime from the draft Tribunals Courts and Enforcement Bill and hopes it will reconsider. The entire enforcement profession should not be condemned by the actions of a minority. The Association and its membership continues to work for higher standards within the industry and it will not allow the actions of a mindless few to undo the good work which has already been done.


ROSAN HEIMS PLC

At an Extraordinary General Meeting held on 31st July 2007 the formal decision was taken to wind up Rosan Heims plc on the basis that it could not continue in business "by reason of its liabilities". Michal Sanders of BN Jackson Norton, 22 Laud Street, Croydon CR0 1SU has been appointed Liquidator. As a result of this decision the Executive Council of the Enforcement Services Association has expunged the membership of Rosan Heims plc from its records.


HMCS Consults on Regulations -

Her Majesty's Court Service (HMCS) has begun the consultation exercise which should eventually lead to the regulation of enforcement agents. Following the passing of the Tribunals Courts and Enforcement Act 2007 HMCS is now consulting with stakeholders, including the ESA, in order to take forward the process of creating regulations. The Association, in speaking to officials, has voiced concern over a number of issues including the up-front fee, the proposed three month time limit for taking control of goods, forced entry, the sale of goods following seizure and the use of the Security Industry Authority as a regulatory body. HMCS has indicated its willingness to listen to stakeholders' concerns and the Association is hopeful that, whatever the final outcome may be, it provides a system which is beneficial to creditors and debtors as well as enforcement agents.

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Code of Practice

1. Members will comply with the Rules of the Association.

2. Members should comply with the provisions of the National Standards for Enforcement Agents.

3. Members will maintain high standards of business ethics and practices in order not to bring the Association, the enforcement industry or the bailiff profession generally into disrepute.

4. Members will not discriminate on the grounds of age, colour, creed, disability, gender, race, religion or sexual orientation.

5. Members will comply with all defined legislation, case law and all health and safety requirements in carrying out enforcement. Members will comply with data protection legislation and maintain strict client confidentiality at all times.

6. Members should on each and every occasion when a visit is made to a debtors property which incurs the debtor in a fee, leave a notice setting out in detail how the fee was made up and retain a record of the said issue of the notice for a minimum period of 12 months, after the date of issue.

7. Members will ensure professional indemnity insurance cover is maintained to their client’s satisfaction.

8. Corporate members will maintain client accounts, which are audited at least once a year. All members will account for cleared funds in accordance with their client’s instructions.

9. Members will allow their clients free and full access to records for audit and investigation purposes in regard to their own instructions and case work.

10. Members will reply to all letters of enquiry or complaint within ten days of receipt. (Members may, at their discretion, require a request for a receipt to be accompanied by a stamped addressed envelope and may refuse to provide a receipt if the requirement is not met.)

11. Members will appear smartly groomed, dressed neatly and soberly, and behave courteously at all times. Members will not misrepresent the powers, qualifications, capacity, experience or ability of themselves their staff, agents or business associates. Letters, notices and other documentation sent or delivered to debtors will not be ambiguous or misleading.

12. Members will declare all associated interests in other companies, firms, associations or groups at the request of the Executive Director. Members will notify the Executive Director of any criminal charges brought against them, their employees, agents or business associates.

13. Members will co-operate with and submit to the Association’s disciplinary procedure (including recourse to independent adjudication). Members will, on request, provide any person or organisation with the name, address and the telephone number of the Association in order to make a complaint or for any other reason.

14. It is the responsibility of each and every Member to ensure that all employees, self employed agents and business associates are made aware of this Code of Practice and any codes of practice issued by their clients.