| Bailiff harassment
Harassment of people in debt by creditors or
their agents is a criminal offence under the Administration
of Justice Act 1970. It is often difficult to
know what to do when you feel a creditor is not
dealing with your account fairly. In order for
you to identify what activities by your creditors
may involve harassment and what can be done about
the problem, this article outlines:
The relevant section of the Administration
of Justice Act
The Office of Fair Trading (OFT)
Debt Collection Guidance of on harassment
How to deal with harassment
by your creditors.
SECTION 40 OF THE ADMINISTRATION
OF JUSTICE ACT
“S40 Punishment for unlawful harassment
of debtors.
(1) A person commits an offence if, with the
object of coercing another person to pay money
claimed from the other as a debt due under a contract
he-
(a) harasses the other with demands for payment
which, in respect of their frequency, or the manner
or occasion of making any such demand, or of any
threat or publicity by which any demand is accompanied,
are calculated to subject him or members of his
family or household to alarm, distress or humiliation;
(b) falsely represents, in relation to the money
claimed, that criminal proceedings lie for failure
to pay it;
(c) falsely represents himself to be authorised
in some official capacity to claim or enforce
payment; or
(d) utters a document falsely represented by
him to have some official character, or purporting
to have some official character which he know
it has not.
(2) A person may be guilty of an offence by virtue
of sub-section (1) (a) above if he concerts with
others in the taking of such actions as is described
in that paragraph, notwithstanding that his own
course of conduct does not by itself amount to
harassment.
OFFICE OF FAIR TRADING
CODE OF GUIDANCE
Many activities could count as harassment. It
is important to note that “anything done
by a person which is reasonable” when trying
to recover a debt, is not considered to be harassment.
Both the Office of Fair Trading and Trade Associations
(run by the credit industry) have produced guidance
on what activities may be considered harassment
and should therefore be avoided by creditors.
The following list is taken from the new Debt
Collection Guidance for holders of Consumer Credit
Licences.
Creditors are warned by the Office of Fair Trading
under the Debt Collection Guidance that the following
practices are "considered unfair":
“IT IS UNFAIR TO COMMUNICATE, IN WHATEVER
FORM, WITH CONSUMERS IN AN UNCLEAR, INACCURATE
OR MISLEADING MANNER.”
This includes:
Letters that look like court claims
Not making it clear who the company is or what
their role is
Unhelpful legal language
Not giving balance statements about the debt
when asked
Contacting you at unreasonable times even when
asked not to
Asking you to contact them on premium rate phone
numbers.
“THOSE CONTACTING DEBTORS MUST NOT BE DECEITFUL
BY MISREPRESENTING THEIR AUTHORITY AND/OR THE
CORRECT LEGAL POSITION.”
This includes:
Claiming to work for the court or be a bailiff
Implying action can be taken that is not legally
possible such as implying they could take your
property
Using a business name or logo that implies they
are a government body
Implying that court action has been taken against
you when it hasn’t
Implying not paying your debt is a criminal
offence
Threatening to take court action in England
if you live in Scotland or the other way round.
“PUTTING PRESSURE ON DEBTORS OR THIRD PARTIES
IS CONSIDERED TO BE OPPRESSIVE.”
This includes:
Contacting you too frequently
Pressurising you to sell property or take out
more debt
Using more than one collection company at the
same time or not telling you when your debt has
been passed to another company
Pressurising you to pay in full or in large
instalments you cannot afford
Making threatening gestures or statements
Ignoring disputes about whether you owe the
money
Trying to embarrass you in public or threatening
to tell a third party about your debts such as
a neighbour or your family.
“DEALINGS WITH DEBTORS ARE NOT TO BE DECEITFUL
AND/OR UNFAIR.”
Examples include:
Sending letters addressed to “the occupier”
or discussing the debt with someone without knowing
if they are you
Refusing to deal with an adviser acting on your
behalf
Not accepting reasonable offers or passing on
payments you make
Refusing to freeze action if you dispute the
debt.
“CHARGES SHOULD NOT BE LEVIED UNFAIRLY”.
Examples include:
Claiming collection costs when the original
credit agreement didn’t allow this to happen
and making you think you are legally liable for
the costs
Not putting the specific amounts that can be
added for collection costs in the original credit
agreement
Adding unreasonable charges.
“THOSE VISITING DEBTORS MUST NOT ACT IN
AN UNCLEAR OR THREATENING MANNER.”
Collectors should explain the reason for any
visit and give you notice of the time and date
they will call
They shouldn’t visit if they know you
are ill or vulnerable and if they find you are
unwell or distressed they should leave
They should not come in if you do not want them
to and should leave when you ask them to
They shouldn’t visit you at work or somewhere
like a hospital.
back to top
HOW TO DEAL WITH
HARASSMENT BY YOUR CREDITORS
The first step is to write to a creditor and
outline your concerns about the company’s
behaviour. Inform them that you are familiar with
the terms of Section 40 of the Administration
of Justice Act and ask that the creditor takes
steps to avoid similar occurrences in the future.
Tell your creditors how you would prefer to be
contacted and ask that they confirm their agreement
to this. A letter at this stage may avoid the
need to take further action against the company.
Tell them you are aware of the OFT Debt Collection
Guidance and that you will consider making a complaint
about their behaviour under the guidance.
It is usually difficult to persuade the police
to prosecute in cases of harassment unless a more
serious offence such as violence, fraud or blackmail
is also involved. Normally complaints should be
made to the Trading Standards/Consumer Protection
Department at your local Council. They should
investigate whether an offence has been committed
and whether prosecution is appropriate. The penalty
is a fine of up to £5,000 in the Magistrates
Court. Also a conviction is likely to provide
evidence that the creditor is no longer a ‘fit
and proper person’ to hold a Consumer Credit
Licence.
If Trading Standards will not act it may be
worth contacting the Office of Fair Trading directly.
The address is at the end of the factsheet. The
OFT does not usually take up individual complaints
but their Debt Collection Enforcement Team collects
information that can be used to take action against
creditors who can lose their Consumer Credit Licence.
The creditor may be a member of a trade association
with a Code of Practice. You could find out if
your creditor is a member of a trade association
and write to them with your complaint. A Code
of Practice is not legally enforceable but the
association may take some action against their
members. The main trade associations are as follows:-
OTHER OPTIONS
Another alternative is for you to pursue your
own prosecution in the Magistrates Court. This
could involve considerable cost so you need to
obtain proper legal advice first.
BT have a new service called "Choose to
Refuse" which might help if you are getting
a lot of calls from an unpleasant creditor. You
have to key in a pin number after a call. The
caller will then get an automated message if you
don’t wish to take their call when they
ring. The cost of the service is £8.00 per
quarter.
If you receive a telephone service from another
provider, contact them and ask if they have a
similar service.
You could refer to the Malicious Communications
Act 1988. This deals with the sending of letters
or articles for the purpose of causing “distress
or anxiety”. A person found guilty can be
fined in the Magistrates Court. To prosecute successfully,
the letter or article sent would have to convey:-
A message which is indecent or grossly offensive
A threat; or Information which is false and
known or believed to be false by the sender.
The Criminal Justice Act & Public Order
Act 1994 Section 4a makes it a criminal offence
to cause “Harassment, alarm or distress”
with intent by using “threatening, abusive
or insulting words or behaviour”. This can
only be an offence if it happens in a public place
not in your own home. The police would need to
be contacted and prosecute for this offence.
The Protection from Harassment Act 1997 makes
it a criminal offence to harass people and put
“people in fear of violence”. The
harassment must happen on at least 2 separate
occasions. The police would have to agree to prosecute
for this offence.
USEFUL ADDRESSES
The Finance & Leasing Association (FLA)
2nd Floor, Imperial House
15-19 Kingsway
London WC2B 6UN
Tel No: 020 7836 6511
www.fla.org.uk
The Consumer Credit Trade Association (CCTA)
Suite 8, The Wool Exchange
10 Hustler Gate
Bradford
BD1 1RE Tel: 01274 390 380
www.ccta.co.uk
Credit Services Association Ltd (CSA)
(For Debt Collection Agencies)
3 Albany Mews
Montagu Avenue
Newcastle Upon Tyne
NE3 4JW
Tel: 0191 213 2509
www.csa-uk.com
Consumer Credit Association (UK) (CCA)
Queens House
Queens Road
Chester CH1 3BQ
Tel No: 01244 312 044
www.ccauk.org
The Mail Order Traders Association
PO Box 342
Southport Merseyside
PR8 2XB
Tel No: 0170 456 3787
Office of Fair Trading
Fleetbank House
2 – 6 Salisbury Square
London
EC4Y 8JX
Tel No: 08457 224 499
www.oft.gov.uk
If your complaint is against a solicitors firm
acting for a creditor, a complaint can be made
to:
Office for the Supervision of Solicitors
Victoria Court
8 Dormer Place
Leamington Spa CV32 5AE
Tel No: 0845 608 6565
www.oss.lawsociety.org.uk
Remember: You can always Phone us for advice
about any difficulty you are having in dealing
with your debts:
0845 466 0364 |
