Elf and Safety gone mad?

For the past 12 years I have worked in the challenging and at times, rewarding field of Health and Safety. I started out as a EHS Coordinator and moved on to become a EHS Advisor on a Top Tier CoMAH Site (Control of Major Accident Hazards). I then became a Senior SHEQ Manager for a logistics company in the North West and more recently i'm employed as a HSE Officer for a Global manufacturing company. My days are spent writing and implementing Site Programmes, issuing Permits To Work, constructing Risk Assessments and detailed Method Statements to help create and maintain Safe Systems of Work, taking into account appropriate Legislation at all times. Conducting accident investigations and accelerated root cause analysis, logging events on global reporting systems, training and inducting employees and dealing with hazardous and non-hazardous waste etc. This experience has given me a great insight into the road less travelled with regards to Health and Safety Law and Beat the Bailiffs and the Banks.


Recently, as of the 1st February 2016, Health and Safety sentencing guidlines changed dramatically and somewhat controversially.






The Health and Safety at Work Act 1974 is one of the best pieces of legislation in the world, it underpins everything that has gone since. It has helped to reduce the number of deaths and life changing injuries caused by occupational incidents by being fast acting in the event of a breach and gives a clear framework for people to work to (in principle the HSE take a common sense approach but since fracking reared its ugly head they may well have become redundant (Lucky for them there's 'fee for intervention'). In English Law there is a Common Law Duty of Care, the ensuing legislation at its core is based on the Common Law principles of;

• No harm (People, Physical & Psychological) and the Environment),

• No loss (People, Businesses & Environment),

• No frustration of fair contract (Contract of work, Roles and Responsibilities, Company Policy, Standard Operating Procedures, Legislation).

A key point regarding the change in the way in which the legislation is to be enforced does have major implications for Directors of companies (and anyone acting in a role with certain responsibilities) with vicarious liability and a Common Law Duty of Care (DoC). It applies to nearly all Duty Holders and named Actors that have potentially breeched statutory legislation.

To prove negligence certain criteria have to be met, part of this is proving that a Duty of Care exists. There is a 3 stage test, known as the 'Caparo Test;

Caparo v. Dickman (1990) “Duties Owed to Others” The common law duty of care owed by employers to their employees is founded on the contractual relationship between them. The duty owed to others that may be affected by the employer’s activities is not defined with the same precision. It is based on the principles of negligence in that a duty of care must first be established. This used to be decided on the basis of the neighbour principle. However, the notion of reasonable foresight is unquestionably too wide and has caused problems in civil actions in many areas of tort e.g. actions for nervous shock. It has therefore been further refined. Nowadays it is usual to talk of a three-stage test as defined in Caparo v. Dickman (1990):


1) Reasonable foreseeability (were the consequences of the acts or omissions reasonably foreseeable);

2) Proximity (is there a relationship between the parties);

3) and Is it fair, just and reasonable to impose a duty?

The last step brings in the concept of policy in which the courts have to balance the needs of an injured claimant against that of opening the “floodgates” and creating an indeterminate liability.


The reasonable man test, is concerned about the standard of care, how the risk is assessed and special categories of defendant. Once the court has determined that a common law duty of care exists between the parties, the claimant must prove that the duty has been breached.






Did the Breach cause the damage? Establishing the causal link, whether the breach caused the injury to the claimant, complications in establishing causation in the context of diseases, loss of a chance, multiple tortfeasors, combined causes, consecutive cases, vicissitudes of life and new intervening acts. The court will start by asking 'but for the defendant’s negligence, would the claimant have sustained their injuries?' This is a question of fact and in many cases the answer will be simple and conclusive. Where another cause also contributed to the claimants injuries, the court may need to decide which was the real or effective cause. This is a question of law. The issue for the court is often whether the chain of causation was broken by an intervening act or event.


Was the damage foreseeable? The test of foreseeability, type of damage versus how it occurred, and type of and severity of the damage—the 'egg-shell skull' rule. Even if the defendant caused the damage they will not necessarily be liable for everything that can be traced back to the original wrongdoing. The defendant is liable for damage only if it was the foreseeable consequence of the breach of duty. It is not necessary to show that the defendant should have foreseen precisely what happened. It is enough if the injury is of a type that could have been foreseen even if it came about in an unexpected way.


Negligence. Perhaps the most important case surrounding Negligence is Donoghue v Stevenson [1932].

Firstly, the House of Lords ruling affirmed that negligence is a tort. A plaintiff can take civil action against a respondent, if the respondent’s negligence causes the plaintiff injury or loss of property. Previously the plaintiff had to demonstrate some contractual arrangement for negligence to be proven, such as the sale of an item or an agreement to provide a service. Since Donoghue had not purchased the drink, she could prove no contractual arrangement with Stevenson – yet Lord Atkin’s judgement established that Stevenson was still responsible for the integrity of his product.

Duty of Care. Secondly, the case established that manufacturers have a duty of care to the end consumers or users of their products. According to Lord Atkin’s ratio decendi, “a manufacturer of products, which he sells… to reach the ultimate consumer in the form in which they left him… owes a duty to the consumer to take reasonable care”. This precedent has evolved and now forms the basis of laws that protect consumers from contaminated or faulty goods. These protections began as common law but many have since been codified in legislation, such as the Trade Practices Act (Commonwealth, 1974).

Neighbour Principle. Thirdly, the Donoghue v Stevenson case produced Lord Atkin’s controversial ‘neighbour principle’, which extended the tort of negligence beyond the tortfeasor and the immediate party. It raised the question of exactly which people might be affected by negligent actions. In Donoghue’s case she had not purchased the ginger beer but had received it as a gift; she was a neighbour rather than a party to the contract. Atkin said of this principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in [mind] when I am [considering these] acts or omissions.”



Previously sentencing revolved around outcomes, for example; If someone was working at height and there was a loose handrail which had been reported through the proper channels and that person fell to their death or was seriously injured then the site operator and/or the person who had the most influence of that situation could be prosecuted for breaches of his or her statutory duties under the HSAWA 1974.

Instead, just the presence of that risk will be enough in a lot of cases to earn that person a custodial sentence. It smells like Pre-Crime, no harm, loss or frustration of fair contract has taken place (think about it.... while you still can).


http://www.shponline.co.uk/the-most-dramatic-change-in-health-and-safety-enforcement-since-1974/





There are various sections of the Health and Safety at Work Act that apply to the debt collection industry, however sections 3 & 7 will apply to their interactions with the public and customers (e.g. householders).


Section 3 states;


3General duties of employers and self-employed to persons other than their employees.

(1)It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2)It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

(3)In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.


From <http://www.legislation.gov.uk/ukpga/1974/37/section/3>


Section 7 states;


7General duties of employees at work.

It shall be the duty of every employee while at work—

(a)to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and

(b)as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.


From <http://www.legislation.gov.uk/ukpga/1974/37/section/7>



Under the Management of Health and Safety Regulations 1999 there is a Duty to Risk Assess;

Risk assessment

3.—(1) Every employer shall make a suitable and sufficient assessment of—

(a)the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b)the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.

(2) Every self-employed person shall make a suitable and sufficient assessment of—

(a)the risks to his own health and safety to which he is exposed whilst he is at work; and

(b)the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.

(3) Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by the employer or self-employed person who made it if—

(a)there is reason to suspect that it is no longer valid; or

(b)there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.

(4) An employer shall not employ a young person unless he has, in relation to risks to the health and safety of young persons, made or reviewed an assessment in accordance with paragraphs (1) and (5).

(5) In making or reviewing the assessment, an employer who employs or is to employ a young person shall take particular account of—

(a)the inexperience, lack of awareness of risks and immaturity of young persons;

(b)the fitting-out and layout of the workplace and the workstation;

(c)the nature, degree and duration of exposure to physical, biological and chemical agents;

(d)the form, range, and use of work equipment and the way in which it is handled;

(e)the organisation of processes and activities;

(f)the extent of the health and safety training provided or to be provided to young persons; and

(g)risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC(1) on the protection of young people at work.

(6) Where the employer employs five or more employees, he shall record—

(a)the significant findings of the assessment; and

(b)any group of his employees identified by it as being especially at risk.


From <http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made>


HSE Guidance

http://www.hse.gov.uk/violence/bailiffs.htm

Local Authority

http://www.hse.gov.uk/lau/enforcement.htm

Corporate Manslaughter

http://www.legislation.gov.uk/ukpga/2007/19/contents


"Fiduciary duty of Local Government agents as Trustees, Chief Financial Officer (CFO). The CFO in local government is not only bound by professional standards but also by specific legislative responsibilities. The role and responsibilities of the ‘Treasurer’ were developed by case law in England and Wales.

In Attorney General v De Winton 1906, it was established that the Treasurer is not merely a servant of the authority, but holds a fiduciary responsibility to the local taxpayers. Section 151 of the Local Government Act 19722 requires local authorities to make arrangements for the proper administration of their financial affairs and appoint a CFO to have responsibility for those arrangements"


"CIPFA Statement on the role of the Chief Financial Officer (CFO) in public service organisations (Council).

The CFO in a public service organisation:


1 is a key member of the Leadership Team, helping it to develop and implement strategy and to resource and deliver the organisation’s strategic objectives sustainably and in the public interest;


2 must be actively involved in, and able to bring influence to bear on, all material business decisions to ensure immediate and longer term implications, opportunities and risks are fully considered, and alignment with the organisation’s financial strategy; and


3 must lead the promotion and delivery by the whole organisation of good financial management so that public money is safeguarded at all times and used appropriately, economically, efficiently and effectively.


To deliver these responsibilities the CFO:


4 must lead and direct a finance function that is resourced to be fit for purpose; and


5 must be professionally qualified and suitably experienced."


The above passages are taken from the publication by; CIPFA | The Role of the Chief Financial Officer




Section 151 Officer (CFO)

http://www.legislation.gov.uk/ukpga/1972/70/section/151


Primary Authority

https://primaryauthorityregister.info/par/index.php/regulator-support/national-regulators



Philip Towers v Premier Waste Management [2012] B.C.C. 72 where the Court {Tom to provide Doc} said that liability:

‘… does not depend on proof of fault or proof that the conflict of interest has in fact caused the company loss… (the fiduciary) will be liable to the company for breach of duty regardless of the fact that (the fiduciary) acted in good faith or that the company could not or would not take advantage of the opportunity’.

The seven judges in the Supreme Court case of FHR European Ventures v Cedar Capital Partners [2014] went further and said that liability to account for the profits or benefit on the part of a fiduciary:

‘… in no way depends on fraud or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefitted by his action… Liability arises from the mere fact of profit having… been made’.


From <http://www.inhouselawyer.co.uk/index.php/litigation-a-dispute-resolution/10593-beware-the-long-reach-of-fiduciary-obligations>




Professionalism and conduct of the enforcement agent

19. Enforcement agents must act within the law at all times, including all legislation and observe all health and safety requirements in carrying out enforcement. They must maintain strict client confidentiality and comply with Data Protection legislation and, where appropriate, the Freedom of Information Act.

20. Enforcement agents must not be deceitful by misrepresenting their powers, qualifications, capacities, experience or abilities, including, but not restricted to;

Falsely implying or stating that action can or will be taken when legally it cannot be taken by that agent

Falsely implying or stating that a particular course of action will ensue before it is possible to know whether such action would be permissible Falsely implying or stating that action has been taken when it has not

Falsely implying or stating that a debtor refusing entry to a property is classed as an offence.

21. Enforcement agents must not act in a threatening manner when visiting the debtor by making gestures or taking actions which could reasonably be construed as suggesting harm or risk of harm to debtors, their families, appointed third parties or property.

22. Enforcement agents should always produce relevant identification to the debtor, such as a badge or ID card, together with any written authorisation to act on behalf of the creditor (in appropriate debt types).

23. Enforcement agents, for the purpose of taking control of goods shall, without the use of unlawful force, gain access to the goods. The enforcement agent must produce all relevant notices and documents, such as controlled goods agreements, that are required by regulations or statute.

24. Debtors must not be pressed to make unrealistic offers and should be asked to consider carefully any offer they voluntarily make and where possible refer to free debt advice.

25. Where a creditor has indicated they will accept a reasonable repayment offer, enforcement agents must refer such offers onto the creditor. 26. Enforcement agents must carry out their duties in a professional, calm and dignified manner. They must dress and speak appropriately and act with discretion and fairness.

27. Enforcement agents must not act in a way likely to be publicly embarrassing to the debtor, either deliberately or negligently (that is to say through lack of care)

28. Enforcement agents must act in accordance with the Human Rights Act 1998 and the Equality Act 2010. They must not discriminate unfairly on any grounds including those of age, disability, ethnicity, gender, race, religion or sexual orientation.

29. In circumstances where the enforcement agency requires it, and always where there have been previous acts of, or threats of violence by a debtor, a risk assessment should be undertaken prior to the enforcement agent attending a debtor's premises.

30. Where enforcement agents have identified vulnerable debtors or situations, they should alert the creditor and ensure they act in accordance with all relevant legislation.

31. Enforcement agents must not seek to enforce the recovery of fees where an enforcement power has ceased to be exercisable.


Vulnerable situations

70. Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with. The appropriate use of discretion is essential in every case and no amount of guidance could cover every situation. Therefore the agent has a duty to contact the creditor and report the circumstances in situations where there is evidence of a potential cause for concern.

71. If necessary, the enforcement agent will advise the creditor if further action is appropriate. The exercise of appropriate discretion is needed, not only to protect the debtor, but also the enforcement agent who should avoid taking action which could lead to accusations of inappropriate behaviour.

72. Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 16 or is deemed to be vulnerable by the enforcement agent; they can ask when the debtor will be home - if appropriate.

73. Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12. 74. A debtor may be considered vulnerable if, for reasons of age, health or disability they are unable to safeguard their personal welfare or the personal welfare of other members of the household.

75. The enforcement agent must be sure that the debtor or the person to whom they are entering into a controlled goods agreement understands the agreement and the consequences if the agreement is not complied with.

76. Enforcement agents should be aware that vulnerability may not be immediately obvious.

77. Some groups who might be vulnerable are listed below. However, this list is not exhaustive. Care should be taken to assess each situation on a case by case basis.

the elderly;

people with a disability;

the seriously ill;

the recently bereaved;

single parent families;

pregnant women;

unemployed people;

and, those who have obvious difficulty in understanding, speaking or reading English.


National Standards 2014

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353396/taking-control-of-goods-national-standards.pdf



Three key and relevant pieces of legislation relating to the enforcement of a writ of possession are:

• Health and Safety at Work Act 1974 (HASAW)

• Human Rights Act 1988 (HRA)

• Courts Act 2003 – section 99 covers the right of the HCEO to request police support and section 189 makes it an offence to obstruct an enforcement agent executing a High Court writ 

The safety of the public is to be considered a paramount objective. Unlawful, reckless or careless actions may render those responsible individually liable to criminal and/or civil action.  Every care must be taken to ensure that the public are not placed at risk of injury or damage by any action or circumstance arising from the execution of the writ of possession.


So, taking all of the above into account and throw in Torts, Negligence, Human Rights and breaches of their own Policies we now have a few different scenarios;

Assault & Battery, when a Bailiff forces his / her way past the person answering the door to gain entry to the property or uses verbal threats.

Trespass to property, chattels (goods) and your 'person'.

Tort Law - Nervous shock.

Misconduct.

Causing undue and significant distress, alarm and harassment to any household.

Operating 'Ultra vires' (outside of operating procedures, as a man / woman and not a representative of the corporation).

Vulnerable households.

Breaches of Data Protection.

Plus many more.


This adds up to a massive can of worms 'the Powers that be' don't want opened. If more people recorded and documented their interactions with bailiffs (and associated scammers) with a view to using it as evidence and lodging a complaint with the regulatory bodies (https://www.gov.uk/your-rights-bailiffs/how-to-complain-about-a-bailiff), the less these debt recovery firms other bodies that overstretch their authority can rely on their previous record when defending their actions (which is a false picture anyway due to under reporting by the victims of crime and the surprising lack of knowledge of the Police in regards to Human Rights legislation and the difference between civil and criminal matters). The evidence gathered could potentially lead to them having their certification revoked because of misconduct and successful claims being brought against them. This may help in keeping them 'honest' (I know, bad choice of word) instead of trampling all over the law and their own codes of conduct.

http://www.legislation.gov.uk/ukpga/2015/2/section/26/enacted



As mentioned previously evidence is very important.




https://www.whatdotheyknow.com/request/guidanceposition_on_photography





There are numerous ways that this can be gathered.

• CCTV.

• Audio recordings.

• Video (mobile phone footage).

• Photographs.gs (Phone calls, Dictaphones, apps).

• Documentation (e.g. Log of events, diary, subject access data requests, FOI requests, forms, letters etc).

• Eye witness statements.

• Funnel method;

• Gather statements and funnel out inconsistences.

• The best witnesses are those whose account of events are accurate, clear and consistent.

• If expecting Bailiffs its a good idea for a friend, neighbour or family member present, your doors locked (and preferably internally bolted and your car stashed on a neighbours drive, if you own it).

• A diary / log of events;

• The 5 WHY method can be used.

• When - date, time, weather conditions, lighting conditions, other things going on that day.

• Where - location, private property, public place, neighbours house, your house.

• Who - Persons involved, ID, full name, position, certification number, up to date insurance, the company / court they are acting for, who was in your house, minors, elderly, people with mental health issues, expectant mothers (vulnerability).

• What - took place, a timeline of events, what paperwork if any do they have, what capacity, jurisdiction are they acting under?

• Why - did the events unfold in this way, what took place at each stage as it developed (use timeline of events to jog memory).

• Also How? Observations of how you think these events have transpired.

• Root cause analysis can now take place, 5 Why's.

I know its not easy to capture this level of information at the time due to stressful nature of the situation that's why I would always recommend that people to film their encounters in a non threatening manner, be proactive, ask the right questions and demand to see the paperwork. If you are not confident enough to do this ask a friend to help, after all a problem shared is a problem halved.

This is not a definitive list but the information contained within will form part of a continuously evolving guide for the BTBATB community and further afield.

So what's the point of my blog?

I want to help raise awareness in relation to the Law and equip people with the right tools, so they can mount a constructive defence or at the very least know their rights and become a good deterrent to piss poor debt collection techniques.

At the same time I want to highlight the lack of accountable leadership, negligence, the wilful deviation from the Common Law Duty of Care, legislation, ACoPs, Guidance Notes and company policy shown by some of those in the debt collection industry who profiteer from vulnerable people and by those in Public Office that either encourage misconduct or let them get away with it.

I hope the above information is a good starter for 10.

Safety matters, especially yours. If you can't help yourself how can you help anyone else?




Thank you for taking the time to read this blog.


Take care


Chris

Creator of Beat The Bailiffs And The Banks



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