Whilst there are regulators for just about every industry you can think of, the enforcement industry has been largely self-regulating and loosely tied to trade bodies. Just like a Netflix or Prime account, trade memberships are easy enough to chop and change. That status quo is now about to end. In November 2022, the Enforcement Conduct Board launched as the product of numerous enquiries, white papers and consultations. Before we go into that, we’ll first explore the fundamental challenges and flaws with enforcement.
The Problem with Enforcement
Court Bailiffs and High Court Enforcement Officers are now simply referred to as Enforcement Agents. Reality TV shows like Can’t Pay We’ll Take It Away represent the standard of integrity and lawfulness of most agents. However, a minority of rogue agents do little to improve the reputation of an otherwise unregulated industry. TV can only go so far as to shake off the ‘thugs in suits’ stereotype. The most common complaints about agents are they’re refusing to accept reasonable payment plans, rights of entry being misrepresented, taking control of goods inappropriately, undue aggression and intimidation, and lack of consideration towards vulnerable people. Regulation to sanction or ban unfit operators is long overdue.
Having said that, we live in a society where complaining about trivial things is almost a sport. We’ve all read those abstract complaints such as a diner being offended by the waiter’s choice of a shoelace or the comment taken so out of context one could feasibly liken a quiche to a baboon. Here in lies the issue with complaints and the ease at which they become vexatious. When visited by an agent, it is natural to feel aggrieved and want some form of retribution against them for having the audacity to enforce a CCJ granted by an impartial Judge! Claimants are unlikely to concede when told their complaint is baseless or vexatious, resulting in more wasted hours composing pointless paper trails. The incentive to deal with such complaints is closer to zero than one.
How Did We Get Here?
In 2007 the Tribunals, Courts and Enforcement Act started the ball rolling for regulation. It was later underpinned and supported by the Taking Control of Goods Regulations 2013, Taking Control of Goods (Fees) Regulations 2014, and the Certification of Enforcement Agents Regulations 2014. The effects on the enforcement industry were to 1) Provide clarity on the authority of agents. 2) Require all agents to be certified by the courts/Ministry of Justice (MoJ), although it is worth noting certification is a walk in the park compared to accountancy exams or trade qualifications. 3) Introduce a National Standard on Enforcement as a benchmark for minimum operating standards. 4) Fix and cap the cost of each enforcement stage to stop the wide variation in charges. Despite such welcomed progress, the use of in-house complaints processes and a continued lack of oversight from an independent body did little to ween the industry off self-regulation. The impact on end-user experience was negligible, leaving critics to condemn the complaints process as biased to the point where grievances become suppressed because the deck is stacked in favour of the agents.
The 2018 MoJ Enquiry found the new standardised fees incentivised agents to reach settlement sooner and with fewer visits and costs. In 2019 the Lord Chancellor and Secretary of State for Justice announced a reform package to deter overly aggressive behaviour, including additional protection for consumers through the Debt Respite Scheme. Wearing of bodycams was made mandatory to protect agents and debtors against abuse. 2019 also saw the Justice Select Committee publish recommendations which highlighted the importance of a centralised complaints body.
A Force for Change
The changes since 2007 still left leading debt charities and The Centre for Social Justice (CSJ) declaring that regulations and recommendations failed to go far enough. The CSJ’s Taking Control For Good report published in 2021 laid the foundation on which to build the Enforcement Conduct Board (ECB). Its creation was endorsed by the wider enforcement industry, the MoJ, and charities such as Step Change and The Money Advice Trust.
Since its launch and for the foreseeable future, the ECB has been funded by a voluntary industry levy. The board has been granted operational independence from those who created it and those it serves. The ECB is expected to assume full legal authority in 2024, but for now, it is about creating processes ahead of making more sweeping changes. As the ECB becomes more established, it is tipped to clean up rogue practices and improve transparency. The ECB’s board members have a wealth of experience from the enforcement industry, social justice groups, equal opportunity programmes, and debt advice groups. Their five immediate priorities are: 1) Setting out new industry standards on behaviour, performance and conduct. 2) Improvements to enforcement practices, compliance, accountability, and sanctions. 3) Development of a standardised complaint handling system. 4) Development of protocols ensuring fair treatment of debtors and safeguarding of the vulnerable. 5) Working with stakeholders such as the MoJ to develop a new accreditation scheme for enforcement firms and agents.
A Force for Good
Enforcement is a powerful tool for debt recovery representing the culmination of Pre-action Protocol, Court Proceedings and Judgement. Without any method of enforcement, a company is free to swallow as many CCJs as it likes without facing the consequences of assets being taken in lieu of payment. A debtor should not have carte blanche to run off into the sunset, leaving creditors high and dry. Nor should they face unethical retaliation. There must be a proportionate consequence. The ECB is tasked with balancing the rights of the creditor with the needs of the debtor. Whatever your view, it’s hard to deny that enforcement needs a fair and uniform standard applied consistently. It would be wrong to expect the ECB to make a seismic impact on the industry this side of gaining full legal authority. Given the ECB’s foundations, there is no reason to think this sleeping giant won’t become a force for good. At worst, it flops, and the status quo is maintained; at best, the ECB signals the rebirth of enforcement. Exciting times are ahead!