Powers PDF - Law Relevant to Enforcement Agents

Chapter 2 Law relevant to enforcement agents Introduction In this chapter key questions will help you to understand the law relevant to enforcement agents. You will become familiar with the law and regulation relating to the authorisation of High Court Enforcement Officers. This includes human ri...

Chapter 2 Law relevant to enforcement agents Introduction In this chapter key questions will help you to understand the law relevant to enforcement agents. You will become familiar with the law and regulation relating to the authorisation of High Court Enforcement Officers. This includes human rights laws, data protection regulation and post-authorisation requirements. Learning objectives: At the end of this chapter, you will be able to: identify the powers and obligations conferred by relevant Acts and regulations. identify aspects of human rights legislation that are relevant to enforcement. state possible consequences of not complying with legislation and regulations. Tribunals, Courts and Enforcement Act 2007 (TCE) To identify their powers and obligations, all enforcement agents must become familiar with the Taking Control of Goods Procedure outlined in TCE Schedule 12 paragraphs 4 to 69 as amended by the Crime & Courts Act 2013 S25 and detailed in the Taking Control of Goods Regulations 2013. The powers and obligations under TCE and associated regulations are discussed in this chapter. They relate to authority to act, premises, powers of entry, force, duty to goods and fees. W An enforcement agent is granted authority under a power given by an enactment, writ or warrant to use the Schedule 12 procedure to take control of goods and sell them to recover a sum of money Section 6 TCE. They also have authority if they hold a Certificate under Section 64 TCE or they are exempt Section 63 TCE. An individual is exempt if they are: a police constable an officer of HM Revenue and Customs (HMRC), or 20  a court officer or staff employed by HM Courts and Tribunal Service (HMCTS) acting in the course of duty What are relevant premises? It is deemed relevant premises if the enforcement agent reasonably believes that they are at the place, or one of the places, where the debtor usually lives or carries on a trade or business Schedule 12 para. 14(6). For Commercial Rent Arrears Recovery CRAR (Section 72(1) TCE) the only relevant premises are the demised premises.4 You will learn more about CRAR shortly. Without a warrant, an EA has the power to enter relevant premises, subject to any restrictions in the regulations Schedule 12 para. 14. If the EA has a warrant issued by the court, they have the power to enter specified premises as authorised Schedule 12 para. 15. You will find more detail about enforcement agent rights of entry and re-entry in Chapter 3. Do enforcement agents need a warrant to enter or re-enter commercial premises? For HCEOs, no warrant is required to enter commercial premise Schedule 12 para. 18A. For all enforcement agents re-entry is permitted without a warrant, following the taking control of goods, provided the required notice is given Schedule 12 para. 19A. What force can enforcement agents use against goods, property or persons? Generally, reasonable force may be used against goods and property. This does not include a power to use force against people. In some cases, such as entry to domestic property, a warrant issued by the court is required. Reg 28 Taking Control of Goods Regulations 2013 Schedule 12 para.20 22. As part of issuing a warrant to enter premises, the court may authorise use of reasonable force to enter or to do anything for which entry is authorised. The conditions the court 4 Demised premises relate to the property the tenant rents under lease. 21 must be satisfied about, are set out in Reg 28(2) Taking Control of Goods Regulations 2013. espect of goods taken into control? They must take reasonable care of any removed controlled goods Schedule 12 para. 35. They must also comply with any provision or regulations about care while they remain controlled goods. What fees are enforcement agents entitled to change? Enforcement agents must charge fees strictly in accordance with the Taking Control of Goods (Fees) Regulations 2014. The Schedule under Reg. 4 has two tables, one for the majority of enforcements and one for High Court Writ enforcement. The regulations provide for a Compliance Stage, an Enforcement Stage (in High Court Enforcement 1 & 2 Stages) and a Sale Stage. Additional disbursements are limited to: cost of storage cost of a locksmith court fees, in respect of any applications needed Any further (exceptional) disbursements can only be charged with the consent of the court. What is CRAR? CRAR or Commercial Rent Arrears Recovery is the power of a landlord, under a lease of commercial premises, to use the Taking Control of Goods procedure under Schedule 12 to recover from the tenant rent payable under the lease (Section 72 TCE). This power replaces the common law right to distrain 5 for arrears of rent which was abolished by Section 71 TCE. 5 is made or an agreement is made. 22 It defines: Landlord Lease Commercial premises Rent The rent recoverable The position of agricultural holdings The position of sub-tenants How does CRAR differ from the previous procedure? The lease must be in writing and relate only to a business premises (CRAR cannot be used where the lease relates to a mixture of commercial and domestic premises) The landlord may not exercise the power in person Only rent may be recovered and not, for example, insurance premiums or management charges (whether or not called rent in the lease) Any provision in a lease claiming to include any amounts (other than rent) due from the tenant to be recoverable as rent are void (Section 85 TCE) The contents of the written authorisation by the landlord are specified in Regulation 51 of the TCG Regulations but there is no prescribed form The minimum amount of unpaid rent for the power to be exercised is an amount Notice of enforcement (a prescribed form) giving the tenant seven clear must be served on the tenant by enforcement agents before they attend to enforce under the Taking Control of Goods procedure. What aspects of Human Rights legislation affect enforcement? It is important to understand how Human Rights legislation impacts the work of enforcement. Most of you will have heard of the Human Rights Act, This is borne from the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR). However, not all of this legislation is relevant to the work of an HCEO. The specific areas relevant to the enforcement agent are: 23  Article 8 Right to respect for private and family life. Under Article 8(1), everyone has the right to respect for their private and family life, their home and their correspondence. Article 8(2) states there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The First Protocol, Article 1 Protection of Property Every natural or legal person is entitled to the peaceful enjoyment of their possessions. No one shall be deprived of their possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Enforcement Agents must be prepared to confirm their authority to act in a manner which rights if they did not fall into the exceptions categories above. Evidence suitable for a police officer should be readily available. This would include ID and documentary authority for the proposed action. Proportionality: action must be: o prescribed by law o be necessary in a democratic society o not discriminatory Enforcement agents: o must act fairly and in good faith o have respect for the individuals (and their property) with whom they deal in their work. Data Protection legislation is designed to maintain the correct use and security of personal data. Personal data relates to any information, as a singular piece or in a pool of other information, which can identify a living individual. Under present legislation, this does not apply to companies. There are many situations in which an Enforcement Officer collects, stores, processes, retrieves and destroys personal data. By its nature, all data held by enforcement agents 24 is confidential and should be respected as such. particularly sensitive and will be subject to greater care. Disclosing confidential information to a third party unconnected with the purpose the data was obtained is in breach of the DPA 2018 and renders the offender liable to prosecution. may hold their personal data and gain a copy of that data. the Data Protection Act 2018 (DPA2018). Part 2 of the Act retains the six core principles of GDPR, namely: 1. To handle data lawfully, fairly and transparently 2. To collect data for a specified purpose and keep until the purpose is fulfilled 3. To minimise the volume of data to safeguard its use 4. To correct inaccurate or incomplete data promptly, within 30 days 5. To delete any stored data that is no longer required 6. To process data securely to avoid loss, destruction, damage or unlawful use GDPR. At the time of writing this can be accessed at https://ico.org.uk/for- organisations/guide-to-data-protection/guide-to-the-general-data-protection- regulation-gdpr/ (retrieved 15.05.23.) Law Enforcement Processing Any personal data processed for the primary purpose of law enforcement, is regulated under Part 3 DPA2018. The principles under Part 3 are similar to those under Part 2 but allow for reduced transparency so that any lawful process is not undermined. You can Processing. At the time of writing this can be accessed at https://ico.org.uk/for- organisations/guide-to-data-protection/guide-to-le-processing/ (retrieved 15.05.23.) The High Court Enforcement Officers Association offers guidance and best practice toward the use of data, in their HCEOA Privacy Policy. At the time of writing, this can be found at www.hceoa.org.uk/privacy-policy (retrieved 21.11.22.) 25 What are the penalties for non-compliance of legislation? TCE Section 63(6) makes it a criminal offence for a person to act as an enforcement agent, without being authorised to do so. An EA must be authorised to operate under a certificate granted by section 64 of the TCE Act 2007. If they do not hold a certificate, they are guilty of an offence. This will stand, whether they breached the legislation knowingly or recklessly. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale. For High Court Enforcement Officers, under Part 3, Condition 6 of HCEO Regulations, non- compliance of the regulations can result in revocation of their licence. Authorisation can unprofessional behaviour or failure to satisfy conditions under Regulation 8. Legislation that sits beyond the TCG and HCEO Regulations, such as the ECHR and GDPR, hold their own penalties for non-compliance. Two other pieces of law the Health and Safety at Work Act 1974 and the Equality Act 2010, demonstrate this point. Health & Safety at Work Act 1974 Under this legislation, an employer has to look after themselves and work colleagues. A failure by an employer can result in criminal prosecution and civil damages and by employees a reduction in damages by any contributory negligence on their part. In general terms, both must assess the risk of the work being undertaken to try to reduce it to an absolute minimum. In civil enforcement, this involves assessing likely risk at the outset and continually reassessing this by dynamic risk assessment as the enforcement progresses. Equality Act 2010 This legislation brings together the various provisions on discrimination (age, disability, ethnicity, gender, race, religion or sexual orientation) and provides for penalties for their breach. It provides the sanction for failing to follow the principle of proportionality under the Human Rights Act and any lapse of professionalism under the National Standards for Enforcement Agents. Whilst an enforcement agent with proper authority cannot be a trespasser (which is supported by TCE Schedule 12 Paragraph 66(2), where there is a breach or defect giving rise to a remedy to a debtor), an agent may be liable in civil law for any damage caused as a consequence of enforcement action. The enforcement agent and subcontractors would normally carry insurance to cover this potential liability. 26 Summary In this chapter you have learned that: enforcement officers must gain certificated authority to act but there are exemptions for the police, HMRC officers and court officers employed by (HMCTS) enforcement agents with a court warrant can enter specific premises and even without a warrant they may enter relevant premises subject to regulatory restrictions Reasonable force is allowed against goods and property but not against people Fees can be charged for Compliance, Enforcement and Sale Stages of enforcement, along with disbursements for storage and locksmith costs, and court fees. Articles 1 and 8 of the Human Rights Act expect enforcement agents to grant respect for private and family life and peaceful enjoyment of possessions transparent data which is purpose-specific, minimal, accurate and secure. Non-compliance toward enforcement legislation carries a criminal penalty. 27