John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

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#1 John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 16 Sep 2016 10:20

This was given to me by email with the following comment:


  • Surely any levy or fees charged by a bailiff with the wrong exam qualification would be deemed unlawful?

  • “Over the past 12 months I’ve become increasingly concerned about the validity of some level two qualifications presented to judges and as a consequence the validity of any certificates granted on the basis of those qualifications. It’s my opinion that some qualifications do not meet the CPR. I believe that this practice is rife within the industry and there are significant numbers of bailiffs out there who do not have a bona fide level two qualification that meets the CPR. I constantly encounter bailiffs who present qualifications which I consider to be suspect; I have then to re-qualify them before they can start employment with me.

    Rule 84.18 specifies that an applicant for a bailiff certificate should provide proof that s/he has achieved “at least a qualification on taking control of goods at (or above) level 2 of the Qualifications and Credit Framework or equivalent as determined by a nationally accredited awarding body.” All qualifications with Quality and Credit Framework (QCF) status are registered and regulated by the Office of Qualification and Examinations (OFQUAL). The OFQUAL register contains a list of accredited awarding institutions and organisations with their qualifications and also includes a list of recognised organisations that meet the standards set by the QCF. I have seen several certificates issued to bailiffs by bodies that claim to have QCF status, yet do not appear on the OFQUAL register. I also have seen certificates of participation in, completion of or attendance on a programme as a consequence of which judges have granted general bailiff certificates- yet none of these documents satisfy the CPR.

    Some of the qualifications I have come across clearly state that they are “at level 2 under the Qualification & Credit Framework” but the awarding bodies do not appear on the OFQUAL register (and, to repeat for absolute clarity, if it’s not on the register it’s not QCF). However, the second part of the regulation states that an award may also be “as determined by a nationally accredited awarding body.” This would be the other route to a valid qualification: an equivalent to a QCF certificate could be awarded by one of the national awarding bodies (such as IRRV or City & Guilds). These awards should make it clear that they are “equivalent to” the QCF qualification- not all of them do, however.

    Some certificates are not determined by an awarding body at all, though, but by an employee of an enforcement company (these are in-house certificates). Rule 84.18 states that there should be a ‘qualification,’ but some of these certificates are not clearly not qualifications in the legal sense: the receivers of the certificates have merely completed an enforcement agent development programme, or attended and completed a training course. A ‘certificate of participation’ or a ‘certificate of competence’ that is not founded upon the national framework is simply a worthless piece of paper.

    OFQUAL are aware and have issued a rather feeble response “We regulate qualifications, examinations and assessments in England and vocational qualifications in Northern Ireland. We maintain standards in the qualification system to give the public the confidence in the qualifications but do not decide if a qualification meets rules laid out under legislation which doesn’t fall under our remit. We are therefore unable to confirm if a qualification meets the Civil Procedures Rules”. The other awarding bodies do not feel it is their role to intervene. Ministry of Justice have been alerted but have yet to act upon this.

    It may be that some EAs are quite innocent in acquiring an inappropriate qualification which, as a consequence, dupes a judge (born out of ignorance of the requirements) into granting a general enforcement agent’s certificate. Those out there who are not following the correct procedure (wittingly or un-wittingly) may have to suffer the consequences should the MoJ decide to enforce what they set out to do in the first place, which was to raise standards by introducing an entry level qualification for the civil enforcement industry.

    I think this could be a big problem. The courts need to be aware which certificates are acceptable. In conclusion, I believe that many judges are granting certificates on the basis of inauthentic qualifications which should be called into question and the providers of these certificates and qualifications should be investigated.”

    This is, needless to say, not just an issue of court administration and enforcement agency practice. If the agent is not lawfully qualified, there could be grounds for challenging the validity of every enforcement action undertaken by him/her. This could in turn lead to demands for the repayment of large sums of fees and, even, the debts collected by those unqualified individuals.
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#2 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Pote Snitkin » 16 Sep 2016 10:41

I've read that elsewhere, on a FB page I think.
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

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#3 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 16 Sep 2016 12:24

All of John's BB's are on facebook. Posted anonymously so I don't put much weight on their authenticity.

I'll be honest, I don't think there is any mileage in John's grounds.

The law says to grant a certificate, the judge must be satisfied that, among other things:

  • (ii)the applicant possesses sufficient knowledge of the law and procedure relating to powers of enforcement by taking control of goods and of commercial rent arrears recovery to be competent to exercise those powers;


It requires no qualification to be obtained.

I don't know where John's CPR 84.18 comments comes from, but this is what it says now:

https://www.justice.gov.uk/courts/proce ... oods#84.18

Nothing about "qualification" however PD 84.18 states:

https://www.justice.gov.uk/courts/proce ... l-of-goods
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#4 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by HC1 » 21 Sep 2016 11:22

Jason

I think there is confusion here between Rules and Practice Directions. Rule 84.18(4)(a) says that an application "must be accompanied by the documents specified in Practice Direction 84".

PD84 then notes at 2.1(1)(e)(I) Proof that the applicant "has achieved at least a qualification on Taking Control of Goods at (or above) Level 2 of the Qualifications and Credit Framework or equivalent as determined by a nationally accredited awarding body; "

Unless the applicant holds such a qualification and proves it to the judge, the certificate cannot be granted.

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#5 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 11:25

Ive read PD84 and there is no statutory exam board offering a TCG qualification. The paper written by a person, a solicitor who is also an HCEO with a commercial interest in supporting bailiff companies.
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#6 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by HC1 » 21 Sep 2016 11:38

The Qualifications and Credit Framework is regulated by Ofqual. You can search the register for any 'regulated' qualification and if you search 'Taking Control of Goods' you will see four such qualifications offered by registered awarding bodies: CICM, Agored Cymru, ProQual and IRRV.

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#7 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 11:40

Then are you saying John is right? and the court is giving certificates to unqualified persons?
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#8 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by HC1 » 21 Sep 2016 11:42

I think what is being suggested is that if a judge is presented with something which is not a certificate from CICM, Agored Cymru, ProQual or IRRV or is not something which a nationally accredited awarding body has determined is equivalent, then it does not comply with CPR and the judge should not issue a certificate. It is being suggested that bailiffs are using non-compliant 'qualifications' and judges are accepting them.

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#9 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Pote Snitkin » 21 Sep 2016 11:45

Maybe we could ask Barclay?
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

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#10 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 11:55

We only work on the side of the debtor. A test of compliance is whether or not the bailiff has a certificate. Most do, very few don't. I spot it when a bailiff is funny about giving his name or is generally evasive with me during a client consultation.

Nearly every bailiff says the laws changed and its schedule 12, but when I question them about it, they have no idea and its over their heads. That tells me they have not done the basic training.

I think the question you are asking is best presented to the MOJ and ask what directions they want to give to judges issuing certificates.
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#11 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Willowbee » 21 Sep 2016 12:55

Surely you should be asking any Bailiff you're dealing with on behalf of your client whether the Level 2 qualification on which they obtained his certificate is recognised by OFQUAL. If it is not, you could argue that their certificate is invalid as is any action or fees charged with it.

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#12 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 13:02

I can't do that because he already has a certificate.

Its not for me to judge the bailiff on his qualifications. I only do a compliance checklist against the schedule 12 provisions. A breach of Schedule 12 only attracts the operation of regulation 3 of the 2014 fees regs.
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#13 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by HC1 » 21 Sep 2016 13:11

To be clear, as far as CPR is concerned, the qualification must either be at least a Level 2 of the Qualifications and Credit Framework - which would be one of the four Ofqual registered bodies - or equivalent as determined by a nationally accredited awarding body. The question would be if the qualification is not from one of the four, has it been determined as equivalent by a National Awarding Body. Reading the Kruse article it seems the suggestion is that some EAs have certificates which are simply certificates of participation [in some course or other] or certificates of competence which are not qualifications as determined by a nationally accredited awarding body.

As for asking a bailiff to present his qualifications, that is not something he/she is required to do except to a judge.....

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#14 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 13:24

If an EA only has a certificate of participation then that would not by itself be an enforcement certificate.

They are two completely different certificates.

For now, the law only requires:

Reg 3 of the Certification of Enforcement Agents Regulations 2014

  • 3. A certificate may be issued under section 64 of the Act only—

      • (a)on application by the person to whom the certificate is to be issued; and

        (b)if the judge is satisfied that—
      (i)the applicant is a fit and proper person to hold a certificate;

      (ii)the applicant possesses sufficient knowledge of the law and procedure relating to powers of enforcement by taking control of goods and of commercial rent arrears recovery to be competent to exercise those powers;

      (iii)the forms which the applicant intends to use when exercising powers of taking control of goods or commercial rent arrears recovery conform to the design and layout prescribed in the Schedule to these Regulations;

      (iv)the applicant has lodged the security required by regulation 6(1), or such security is already subsisting; and

      (v)the applicant does not carry on, and is not and will not be employed in, a business which includes buying debts.
    [/i]
I don't think PD's can rebuke legislation.
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#15 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Willowbee » 21 Sep 2016 13:45

Surely if you're trying to help a client the fact that the certificate the bailiff is acting on may be unlawful is something that should be explored?

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#16 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 13:47

If the bailiff doesn't show a qualification but shows an enforcement certificate, under what provision does the client bring a cause of action?
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#17 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by HC1 » 21 Sep 2016 17:19

In order to obtain an Enforcement Agent's Certificate you need to follow The Certification of Enforcement Agents Regulations 2014 and also the Civil Procedure Rules. They go hand in hand together as does much of the regulatory framework. You cannot simply ignore CPR!

The problem, as you note, is that it is the judge who decides whether a level 2 qualification is valid and if the judge accepts it is, an enforcement agent's certificate is issued. Whether it was issued correctly or incorrectly is hard to determine but clearly there are some out there which have been issued incorrectly. What do you do about it - no idea!

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#18 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Schedule 12 » 21 Sep 2016 17:29

If there is a question about a bailiffs fitness to hold a certificate then Paragraph 84.20 of the Schedule of the Civil Procedure (Amendment No.2) Rules 2014 deals with it.

The purpose of this forum is redressing non complaint enforcement rather than unqualified bailiffs. The only time a bailiffs is qualified is whether or not he holds a certificate and if not, then section 63(6) of the TCE Act deals with it by placing the information before a JP under section 1 of the Magistrates Courts Act 1980. Its up to the JP to decide whether the person is to answer the information.

I don't have a procedure to examine the qualifications of the bailiff, or whether the judge correctly followed PD's. That might be something to be examined if a claim was brought by a client.
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#19 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Tuco » 21 Sep 2016 17:41

I don't see how this is any concern to us. We can only deal with what is in front of us. If a bailiff has been granted a certificate, then we have to accept that he is certified. There is no right to enquire as to the status of someone's certificate.

It is more a problem for the agencies. I would imagine those providing accredited training and qualifications are paying more to the provider than those who use their own material. This is across the board in any industry and obtaining accredited qualifications does not come cheap.

It should be noted that many industries pay for candidates to undertake training and either deduct monies weekly/monthly from earnings, or tie the candidate in to a period (usually two years). Bailiff companies generally expect potential EA's to fund the certificate themselves.

As a complete guess here, I imagine that most of these phony certificates are issued by companies who were charged with updating certificates after the 2014 changeover.

Personally, I am more concerned about the behaviour of the bailiff than I am, the status of his certificate. If someone enforces lawfully on a dodgy qualification, as opposed to someone who has an accredited certificate, who enforces unlawfully, then that is more important to me.

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#20 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Willowbee » 21 Sep 2016 22:28

Fair enough, but the next time you have a bailiff acting outside the law maybe question him on the above. You might just open up a hornets nest.

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#21 Re: John Kruse - Bulletin 44 - June '16 - "faulty certificates?"

Post by Tuco » 21 Sep 2016 22:59

As has been said 2 or 3 times now, a bailiff is under no obligation to divulge details of qualifications. If JK cannot open a hornets nest, we're hardly likely to are we?

This is just a bit of internal feuding between rival bailiff companies, it doesn't concern me. We're talking about a 2 or 3 day course here, not a 4 year university degree. It involves a practical demonstration and a multiple choice test. The bailiff companies that are complaining are the ones who have paid through the nose to go down the accredited route. They are just bitter and twisted that they lose out on contracts to rivals who have got away with a cheaper option.

Besides, the knowledge that bailiffs display of Schedule 12 often leaves a lot to be desired, so in my humble opinion, the courses aren't achieving a fat lot anyway.

Of far greater significance to me should be making it mandatory to film visits. This would protect both parties-How many times do we hear that batteries ran out or cameras weren't working etc?

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