From 1st April 2014 all powers are show under Enforcement Agents
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Amendments to the legislation concerning Bailiffs and the use of distress will be made by the Tribunals, Courts and Enforcement Bill
Current legislation - Reg 45 Council Tax (Administration & Enforcement) Regulations 1992
Distress is the seizure of goods and chattels of the debtor in order to settle outstanding debt plus costs incurred
A Liability Order can be executed anywhere in England & Wales in the case of Scotland the Liability Order has to be endorsed by a Scottish Court and passed to a Sheriff Officer for execution.
Being statutory distrain (prescribed by statute) rather than common law distraint as with rent, distress can be levied at any time.
There are no restrictions except where a Court feels that the timing is unreasonable.
Magistrates cannot suspend action on a Liability Order executed by the Authority except in the case of Reserve or Auxiliary Forces called up in times of emergency etc. (Reserve & Auxiliary Forces (Protection of Civil Interests) Act 1951)
The amount to be distrained is total amount on a Liability Order plus all summons and liability order costs plus appropriate fees determined within the legislation in respect of distress.
If the amount is tendered in full prior to distress the Council should accept (even if presented in the form of a cheque) and not proceed with the distraint.
The person undertaking distress must be duly authorised officer of the Authority or a private bailiff authorised by the Authority.
All staff required by the Authority to carry out distraint are authorised to do so.
There is a current requirement for the person executing the liability order to be certificated by the County Court.
All staff executing liability orders hold a current County Court certificate which will remain in force for two years
When executing distress written authorisation must be carried at all times and this must shown to taxpayer if requested to do so at any time during the distraint action.
The Liability Order does not have to be executed promptly although best practice dictates that the action should be taken as soon as possible after obtaining the order.
The principles of present distress law have been determined as:
Entry onto premises
Seizure of goods and
Securing of goods
There is no general right to break into premises under the legislation and the bailiff must gain entry by peaceable means. This has been confirmed by a number of cases and in particular:
Bell v Oakley 1814
Semaynes Case 1601
'An Englishman's home is his castle'
The bailiff has a licence to enter onto premises in any way other than by breaking in. The bailiff can enter premises where he is not barred physically
A bailiff can re-enter onto premises in certain circumstances especially where he is forcibly expelled or driven away after making lawful entry.
A bailiff can ask for assistance of Police Officer to regain entry although it should be noted the Police will not assist in gaining entry but be there to avoid any breach of the peace arising.
The bailiff may breakdown an outer door if distraint has already been taken and the bailiff has either taken walking possession or is temporarily absent.
Where this occurs the goods taken must be those originally distrained upon.
An action is deemed to be actual seizure if hands are laid upon the article or several articles and a form of words used which claims detention of the goods or chattels until the debt is paid.
There is no legal requirement to obtain a signature from the owner of the goods when distraining although care should be taken to ensure that the goods are those owned by the debtor.
In the case of Evans v South Ribble the bailiff did not gain entry and never made physical contact with debtor.
To allow for fees to be charged the bailiff 'made out' that distress had been taken and posted documents through the letter box of the debtor saying that they would return to collect the goods - breaking in if necessary.
It was held by the Court that this did not constitute distress as peaceable entry had not been gained.
Where payment is made in full after distraint but before the goods are sold - the goods should be made available for collection by the debtor
There is no legal obligation to return goods distrained to the place from which they were removed - just to make them available
Where distress has been levied the bailiff must leave copy of regulations with notice of distress / schedules of fees.
A list of goods is not a legal requirement but it is best practice to leave such a list to ensure that the debtor is aware of exactly the items that have been distrained upon.
From the 1st April 1998, the Council is obliged to issue warning letters informing debtors of the fact that the matter has been passed to the bailiff. A copy of the warning letter needs to be left together with other distraint documentation.
Where goods are distrained they must be clearly recorded and appropriate details taken for example:
Serial numbers
Descriptions
This is especially important if the goods are not unique and cannot be easily distinguished from another persons.
Close Possession occurs where the bailiff is unable to take actual seizure of the goods and decides to remain with the goods until such time as they are removed or sold on site after the required statutory time limit of 5 days.
It is most unusual for close possession to be taken in respect of domestic debts such as Council Tax but it can be used in the case of Non Domestic Rating where perhaps the goods are too large to remove such as in plant and machinery.
In the case of Close possession the Taxpayer must sign an agreement which allows the person distraining to stay on premises with goods until either goods removed or payment made.
Charges are made for each day that the bailiff remains on site.
The most commonly used form of distress by far and one which encourages payment rather using the threat of actual distraint rather that meeting the total of the debt by selling the goods.
Again the Taxpayer must sign an agreement and the Walking Possession agreement will include an inventory of all goods distrained with again clear indication of identification in all cases.
The Walking Possession agreement allows goods to stay on premises without supervision until either removed for sale or full payment.
Where walking possession has been taken and the debtor refuses to allow the bailiff back onto the premises to obtain the goods and where no payment has been made, the bailiff may break into the premises to recover the goods.
The regulations do not prescribe a method of sale but the Council is obliged to obtain the best possible price at all times.
Sale cannot be made until after the statutory period of 5 days.
In a number of cases it is of distinct advantage for the sale to be under private treaty (private sale) for example in the case of specialist items or equipment. However the agreement of the debtor must be obtained in all cases.
Where the bailiff is unsure as to the expected value of any item and feels that an independent opinion should be given then the item may be appraised by any suitable / qualified person. Costs of appraisement up to a maximum as defined by the regulations can be charged to the debtor.
The person undertaking the appraisement must not connected with act of distraint in any way.
All goods must be held for at least the statutory period prior to sale and the debtor must be notified of the time and place of sale to allow for remedial action to be taken.
At the sale, once the amount of the debt plus all costs and fees (including auctioneers fees is raised the sale must be stopped.
Where any excess is raised through the sale the amounts over should be repaid as soon as possible to the debtor.
Where insufficient monies are raised by the sale of the goods then Distress may be sought more than once
Second Distress may also be sought where the taxpayer prevents distress being realised properly or perhaps excludes the bailiff from the property or certain parts of the property.
Second Distress may be sought where there is an error in estimating value
Where the Council has sought to levy distress and it appears that no or insufficient goods of the can be found then the bailiff must endorse the Liability Order clearly with the reason for being unable to distrain for whatever reason.
It is only after obtaining such an endorsement that the Council can then look to apply to the magistrates for the persons committal to prison.
The endorsement where the bailiff was able to gain entry but found little or insufficient goods to cover the debt should be:
'no goods' or 'insufficient goods'
Where the bailiff was unable to gain entry the endorsement should be 'unable to gain access' or 'unable to make contact'
It is essential that the bailiff endorses the liability order correctly as the Magistrates must decide if endorsement is valid before proceeding with any committal application.
At committal court the magistrates may call the bailiff to explain an endorsement or can enquire into reasons for endorsement.
Only the following goods can be distrained by the Bailiff in respect of Local taxation debts.
Goods of person named in the liability order are the only ones that can be distrained
Moveable property, possessions or merchandise
Generally not items that are affixed to the freehold
The bailiff must determine whether goods can easily be removed and whether damage would result.
In the case of Joint & Several Liability a Liability Order may be granted against one or more joint payers and distress may be made against one or all named in the order.
Goods jointly owned may be taken if pursuing just one debtor.
Tools books, vehicles and other items of equipment necessary for the debtor to use personally by him in his employment, business or vocation
such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the debtor and his family
The following charges are applicable where distress is attempted or actually levied.
Making a visit to premises with a view to levying distress (where no levy is made)
For Wales the provisions come into place from April 2004
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Stage |
Up to October 2003 |
From October 2003 |
From 1st April 2007 |
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Making a visit to premises with a view to levying distress (where no levy is made) |
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First Visit - |
£20 |
£22.50 |
£24.50 |
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Second Visit |
£15.00 |
£16.50 |
£18.00 |
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Levying Distress |
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Sum due £100 or less |
£20.00 |
£22.50 |
£24.50 |
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Sum due above £100 |
20% first £100 |
22.5% first £100 |
24.5% first £100 |
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4% next £400 |
4% next £400 |
4% next £400 |
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2.5% next £1500 |
2.5% next £1500 |
2.5% next £1500 |
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1% next £8000 |
1% next £8000 |
1% next £8000 |
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0.25% any additional sum |
0.25% any additional sum |
0.25% any additional sum |
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Attendance with vehicle - following levy |
Reasonable costs and fees |
Reasonable costs and fees |
Reasonable costs and fees |
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Removal of goods and storage
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Reasonable costs and fees |
Reasonable costs and fees |
Reasonable costs and fees |
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Walking Possession |
£10 |
£11 |
£12 |
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Close Possession |
£10 |
£14 |
£15 |
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Appraisement of Items |
Reasonable costs and fees of broker |
Reasonable costs and fees of broker |
Reasonable costs and fees of broker |
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Sale by Auction |
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Held on auctioneers premises |
Commission fee Out of pocket expenditure Not to exceed 15% of total realised Reasonable costs plus adverts etc. |
Commission fee Out of pocket expenditure Not to exceed 15% of total realised Reasonable costs plus adverts etc. |
Commission fee Out of pocket expenditure Not to exceed 15% of total realised Reasonable costs plus adverts etc. |
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Held at debtors premises
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commission fee not to exceed 7.5% of total realised |
commission fee not to exceed 7.5% of total realised |
commission fee not to exceed 7.5% of total realised |
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out of pocket expenditure |
out of pocket expenditure |
out of pocket expenditure |
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reasonable costs plus adverts etc. |
reasonable costs plus adverts etc. |
reasonable costs plus adverts etc. |
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Other Sale |
Reasonable Costs |
Reasonable costs |
Reasonable costs |
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No sale due to payment |
Reasonable Costs |
Reasonable costs |
Reasonable costs |
Where the bailiff has no right to distrain or commits an unlawful act or where any of the following occur:
Distress after payment
Distress on protected goods
Breaking into premises
Selling goods not distrained
Distress on goods not of the person named in LO
It is deemed to be illegal or unlawful distress and the debtor has the right to remedy in law.
The remedies primarily lie with an appeal to Magistrates Court, whereby the Council can be summonsed to the Court to explain why it has acted illegally (remember at all times that the bailiff is an agent of the Council even if an external company is employed.)
This will be particularly relevant in future as the warning letter issued by the Council to debtors where the Bailiff has taken distress will clearly state the appeals process if they are no satisfied.
Within the County Court there also lies an appeal mechanism namely:
Action for Replevin
Action under the Torts (interference with Goods) Act 1977
Action for damages
An injunction
This occurs where the right to distrain has been properly exercised but a subsequent event has been carried out in an unlawful manner for example:
endorsing LO as ' no sufficient distress' but distraint not attempted
distress proves excessive
selling for other than best possible price
dealing improperly with surplus after sale
In this particular case the remedies are similar to illegal or unlawful distress:
Magistrates Court appeal
Action for damages - County Court
When distress is taken the bailiff must ensure that the value of the goods is not excessive in relation to the size of the debt. This is often difficult and can be particularly onerous if the debtor has a single item of value which is far greater that the amount actually required e.g. Ferrari (£40,000) - debt £5000
Where excessive distraint is taken the debtor has legal remedies available which can result in action being taken against the Council
Again the legal remedies are:
through the magistrates Court
Torts (interference with goods) Act 1977 through the County Court
Steel Linings Ltd & Harvey v Bibby & Co
County Court had power to issue injunction where excessive value thought to be an issue
Any person sustaining damage due to unlawful or irregular distraint may take the following action:
By making complaint to the magistrates the Court may order the Council to return goods, pay compensation or award special damages.
A legal appeal process to obtain return of goods incorrectly distrained.
The goods must remain unsold and there is a 6 year time limit. Action is taken through County Court in area where the goods have been sized.
The appeal takes the form of two parts:
The Replevy
A Bond given to Court which is a set fee and the action must follow within one week.
The Action
The action is a formal hearing in County Court or High Court and if successful - return of goods plus costs.
Wearing apparel in actual use not distrainable (Hardisty v Barney 1696)
Goods which are the property of the Crown.
Goods in the possession of the landlord
Goods in the possession of the Inland Revenue
Money except in a bag
Perishable items (Mortley v Pincombe 1848 - Pig carcases)
Goods in the mail cannot be seized
Goods in the custody of the law
Fixtures cannot be distrained
Goods in an absolute Bill of Sale Bill of Sale Act 1878
HP goods cannot be distrained Solomon v St. Mary of Islington 1900
Gas/ Electricity/ Water fittings cannot be distrained.
The goods if returned must be in the same condition as when they were distrained
Proposals were made to allow for bailiffs to provide additional information to debtors.
The DCLG and WAG have decided not to move this along . The DCLG statement is given below;
As mentioned in Council Tax Information Letter 1/2004, the regulations will not include Regulations 7 and 8 of the consultation draft which concern the supply of information by bailiffs. We have decided to review these proposals in the light of the responses to the consultation exercise.
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