Seize what you can: why we’re working with the bailiff industry on a new oversight body

By Peter Tutton, Head of Policy, Research and Public Affairs

Today sees the publication of plans for an Enforcement Conduct Authority (ECA), a new independent voluntary oversight body for the bailiff industry. The framework, set out in this Centre for Social Justice report has been jointly developed with members of the enforcement industry trade body CIVEA and debt advice charities, including Stepchange.

We think the commitments set out in the ECA framework represent a real and significant step towards the bailiff reforms we have been campaigning for.

As part of the Taking Control coalition of charities and debt advice providers, StepChange has been campaigning since 2017 for independent statutory regulation of enforcement officers (the proper name for bailiffs) and the enforcement firms that run the sector. This is because the way the enforcement sector conducts its business matters a lot.

Enforcement by taking control of goods can be a fierce, invasive debt recovery method. It is capable of adding stress and considerable extra costs that make debt problems even harder for financially vulnerable people to deal with. Much of the debt recovered by CIVEA members (like council tax) is owed to public bodies, like central and local government. Our clients with these debts are more likely to have a budget deficit after advice and more likely to have vulnerabilities in addition to their financial difficulties.

Given this, it would be reasonable to think that regulatory oversight of the enforcement sector would be at least as good as we see in arears such as financial services, retail energy and water; but this is not the case.

Despite thinking about bailiff reform for nearly 20 years, the reforms that the Ministry of Justice put in place have not worked as they were supposed to.

Taking Control members continued to see many of the same problems. The Ministry of Justice itself recognised this, publishing a call for evidence in 2018 on the need for further reform (but it has not yet published a response).

Perhaps more importantly, the enforcement sector recognised that change was needed and took a bold step to do something about it; reaching out to Taking Control members who were their biggest critics and asking us work with them on a meaningful industry voluntary approach to raising standards.

In the world of public policy advocacy we sometimes need to keep two conflicting thoughts in our heads at the same time. Our main aim was and is effective statutory regulation of bailiffs because we know this has successfully improved standards in debt recovery practices in other sectors. However, when invited by the enforcement sector to help develop a plan for better voluntary oversight that could deliver better outcomes for financially vulnerable people, we enter those discussions in good faith, pushing for the best voluntary scheme available.

In this respect, the working group quickly reached consensus on a principal mandate for the ECA: “to ensure fair treatment and appropriate protection for people subject to enforcement. In doing so it will have particular regard to the need to protect people in financial difficulty or other vulnerable circumstances”.

We see this as a strong commitment from the enforcement sector on the standards they wish to be held to and gives the ECA a clear direction of travel that we believe focuses on the right things.

The mandate is supported by an equally clear principle that the ECA must be operationally independent from the sector and objectives to raise standards, hold enforcement firms and enforcement officers to account, adjudicate on complaints and develop new good-practice protocols on affordable repayment and vulnerability. These are most of the big-ticket functional items on our bucket list for a regulator.

Of course there are a number of questions and challenges remaining.

The ECA needs to be established as a working independent organisation and it needs sufficient funding to do its job with no strings attached by the sector. At present, the remit of the ECA only extends to CIVEA members. We hope other parts of the enforcement sector like the High Court Enforcement Officers Association will come on board.

Most importantly, the ECA will need the necessary policy support and authority by the Ministry of Justice if it is to exert an influence and succeed.

The body will be born into a landscape of existing legislation, requirements, standards and guidance that do not add up to what both the enforcement sector and consumer advocates believe is necessary. At the very minimum, the Government cannot let old approaches stand in the way of the new and should clear the road for the ECA to get up to speed.

We still believe that the ECA is likely to need its mandate underpinned by legislation, as standards and regulatory decisions have much less weight and scope when the regulated community is not ultimately bound by them.

The Government has given us some comfort here, by committing to review the case for statutory unpinning two years (or sooner if necessary) after the ECA has been established.

Until then, a voluntary ECA is the only game in town. If implemented and supported correctly, it’s a game that should be well worth the candle.