Myth busting: part two of what an enforcement agent can and cannot do

There are often misconceptions about what an enforcement agent (EA) is permitted to do and the powers provided to them in the execution of a writ of control under the authority of an authorised High Court Enforcement Officer (HCEO).

In the second part of this article, we look at several other aspects of enforcement to bust any myths around them. We will cover:

• Does vulnerability stop enforcement?
• Is it okay for the creditor to make an agreement with the debtor after instructing an EA?
• Can you take control of a director’s goods when the debt is against the company?
• Will refusing to answer the door or engage in any way stop enforcement?
• Can an EA take control of a vehicle on hire purchase?

Does vulnerability stop enforcement?

Vulnerability does not prevent enforcement: enforcement action can proceed, provided the creditor and enforcement agent have undertaken the necessary steps to fulfil their obligations.

Generally, a person is vulnerable if it would be unreasonable to expect them to be able to deal with a problem themselves. Vulnerability is not clear cut; we must look at every claim of vulnerability and look at the individual circumstances and remember that vulnerability can be transient.

Under The Taking Control of Goods Regulations (Fees) 2014, Regulation 12 states that, where the debtor is a vulnerable person, the fees due for the enforcement stage are not recoverable UNLESS the enforcement agent has, before proceeding to remove goods which have been taken into control, given the debtor adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.

Creditors have a key role in ensuring vulnerable debtors are identified and protected, sharing information such as background information detailing health, welfare and case history which should include details around vulnerability. Creditors should avoid using enforcement agents where they have evidence that the debtor is vulnerable.

Enforcement agents have an obligation to report to creditors when they encounter a vulnerable debtor. This is the process the EA follows:

• Mental health problem identified
• Decide evidence needed
• Explain data protection requirements
• Obtain explicit consent
• Dispatch the debt and mental health evidence form and consent form to gather necessary evidence from health and social care professionals. While the forms are being completed and verified, enforcement action and unnecessary contact is suspended
  Include covering letter and return address stamped envelope
• Debtor/ carer/ family member reads and signs consent form
• Medical professional completes and returns the debt and mental health evidence form
• Received by the enforcement agency, which sends copies to the debtor and informs the creditor
• Decide on action

You can read more about this in our eBook on Vulnerability and enforcement practices.

Is it okay for the creditor to make an agreement with the debtor after instructing an EA?

In a word, no.

If a debtor pays the creditor directly during the enforcement of a writ of control, the enforcement power ceases.

This means that the EA can take no further action. If they have taken control of any goods, they will need to arrange for the debtor to collect them.The enforcement fees are no longer recoverable from the debtor, because the debt has been settled and the enforcement process has ended. This will most likely mean that the creditor will become liable for the payment to the HCEO of all the enforcement fees incurred.

Can you take control of a director’s goods when the debt is against the company?

Goods that the director has use of, but which belong to the company, such as a company vehicle or a laptop, can be taken control of, but not goods that belong to the director personally.

The only exception to this is when the director has given a guarantee for the company, as this is a legal commitment for the director to pay if the company doesn’t honour the terms agreed, making them personally liable and putting their assets at risk.

Where there is more than one director, they will probably have agreed to joint and several liability, which means that all directors are jointly liable for any company debt as well as being individually liable.

Will refusing to answer the door or engage in any way stop enforcement?

No, it will not stop enforcement. The case will progress through the stages, which will incur additional fees for the debtor. If goods can be taken into control, such as a vehicle on the road, these may be sold under the sale or disposal stage, if the case gets that far.

If a debtor engages with the enforcement agent early in the process, they should be able to avoid incurring additional fees and come to a payment arrangement to clear the debt over time, significantly reducing the stress they may be experiencing around the debt.

The creditor may also use other forms of enforcement in conjunction with, or following the unsuccessful enforcement of a writ of control, such as bankruptcy or winding up petition, an attachment of earnings order or a charging order against property, whereby the creditor recovers the debt when the property is sold.

Can an EA take control of a vehicle on hire purchase?

Normally, the financer of the hire purchase agreement will retain title to the goods until they are paid in full and therefore the vehicle does not belong to the debtor and the EA cannot take control of it.

We will normally undertake a Hire Purchase Information (HPI) check to see if the vehicle is covered by a finance agreement or has been reported stolen or written off (vehicles reported stolen or written off may not be sold).

If there is an outstanding amount on the hire purchase agreement, then the finance company will usually retain legal ownership of the vehicle until it is cleared. On occasion, for example the arrangement is nearly completed, they will allow sale, providing the sums owed to them are paid.

Read "Myth busting part one"