FOOL'S EYE VIEW
The Bailiffs Are Coming!

By Jane Mack (TMFJane)
March 27, 2003

Last summer, the So Solid Crew producer Carl Morgan barricaded himself into his flat in Wandsworth when bailiffs arrived to evict him for non-payment of rent.

Eventually he nipped to the bank and drew out the amount he owed and it was all sorted. It was the fact that the bailiffs were initially powerless to do anything when he locked himself in and refused to budge.

Not many people know this but, at the moment, a bailiff can't force his way into your home to evict you or to seize your possessions to satisfy a debt unless you first let them into the house or else have inadvertently left a door or window open through which they can gain peaceful access.

If they get in the first time, they are subsequently entitled to break in later to collect anything they forgot to take.

The rules may well be about to change with the publication yesterday of a White Paper from the Lord Chancellor's department concerning the enforcement of debt collection.

Bailiffs will face stricter rules about how they operate but, if the proposals are agreed, they will be given far more powers than they currently have – including the power of arrest.

In theory, it will safeguard those who can't pay as opposed to those who know the limitations of the current law and who won't pay.

According to the Financial Services Authority, one in four households (more than six million families) are currently struggling to pay their debts so an increase in bailiffs' powers could have a major impact on how these debts are collected.

Under the existing arrangements after a creditor has obtained a judgement he can apply to the courts to enforce payment of the debt. He can opt for methods such as an attachment of earnings order or a charging order but the most common is to call in the bailiffs.

According to the White Paper this method has a very low success rate in terms of debt recovery with only 50% of warrants succeeding during 2001. The main reason is that bailiffs simply can't find out enough about a debtor's financial circumstances – especially if they can't get into the house - so it is difficult to distinguish those who won't pay from those who just can't.

Quoting a report on the (non) effectiveness of warrants, the White Paper says:

It is of the greatest social importance that court-based enforcement mechanisms enjoy the confidence both of defendants and creditors. If the latter lose faith in the formal system of enforcement and turn to other methods of securing payment, the consequences may prove much more disagreeable and more intrusive for defendants (as well as offering them far fewer protections) than would a tougher court-based system.

Research carried out for the Lord Chancellor's department shows that the great majority of people who fall into arrears have every intention of paying but are unable to do so either through a drop in income resulting from a change in circumstances or living long-term on a low income. However, the recommendations dealing with this aspect of enforcing a judgement don't really seem to mean much:

• industry codes of practice and guidance on arrears management should reflect the best practice of 'holistic creditors' and be subject to independent monitoring;
• creditors should be required in pre-action protocols to say that they have complied with their industry code of practice or guidance;
• creditors and the courts should work closely with independent money advisers in order to identify 'can't pay' from 'won't pay' debtors.

I can't see how any of them are actually going to help people who are genuinely struggling. It all seems a bit vague.

The good news is that bailiffs operating without a licence will face prison so debtors who are intimidated by bailiffs who currently operate on the outskirts of the law will at least have some form of effective redress.

More: Get Out of Debt Centre