Things were looking up for Alice. She’d just accepted a new job with a considerable pay rise.
As a single mum with a young boy, she had always lived within her means, but she did what any normal person would do in this situation and got herself a little something to celebrate. The kitchen had been in dire need of some TLC, so she opted for a new one fitted on finance.
Then came a big shock. Alice was made redundant from her new job. As she frantically sent off CVs to every and any business with a job vacancy, she started racking up the credit card debt. First it was to cover birthday presents for her son’s birthday. Then it was to pay for car repairs and council tax. Before long she was maxing out all her cards just to pay for her weekly food shop.
She started to default on payments. Weeks passed and she winced each time the post arrived in case it was another angry letter from the credit card companies.
One day, a different letter arrived, but just as ominous as the others: it was an “exceptional attachment order”. She was going to be paid a visit from the sheriff officers.
Alice was distraught. What would her 8 year old son think? She didn’t want him to see this.
A visit from the sheriff officer is the last thing anybody wants. It can also be a confusing time – what are they allowed and not allowed to do? In this article we’ll look at what a sheriff officer is permitted to do, what they can take, how to identify them, and how you can prevent them from coming in the first place.
(The following information applies to Scotland only. In England and Wales, the equivalent high court enforcement officers are called bailiffs.)
What is a Sheriff Officer?
A sheriff officer is an officer of the Scottish sheriff court. It is their responsibility to serve legal papers and enforce court orders within the area of their commission. This area is known as the sheriffdom or sheriff court district.
Sheriff officers are either employed by a firm of sheriff officers or are self-employed. They can be hired by individuals, companies, solicitors, local authorities, and government departments to enforce court orders.
A Messenger-at-arms is similar to a sheriff officer, though their jurisdiction is not limited to the area of their commission.
Sheriff officers are officers of the court, not police. They do not have the power to arrest you, though they do have the power to seize your money, as well as items which belong to you, to accumulate money equivalent to the value that you owe.
They are also different from debt collectors, who, rather than being appointed by the court, have only been appointed by the lender. This means that, unlike sheriff officers, debt collectors do not have the power to enforce a debt, lawfully seize property or enter your home.
Can a Sheriff Officer enter my home?
In most cases, a sheriff officer cannot enter your property. However, if they are acting on an exceptional attachment order, they are permitted to enter your home.
Alice was terrified at the thought of letting a complete stranger into her house. What if she had to pop out? Would they break in?
Sheriff officers can only enter the property if there is someone inside who is at least 16 years old and understands what is happening and why.
If the person inside does not speak English, or has a mental disability which might prevent them from understanding the situation, the sheriff officer is not permitted to enter the home.
A sheriff officer can only visit on an exceptional attachment order between 8am and 8pm. This does not include Sundays or bank holidays.
You will be given at least 14 days advance notice that a sheriff officer intends to visit your property.
What happens if I refuse entry to a sheriff officer?
Alice didn’t know what she should do. Could she just turn a sheriff officer away?
Should you refuse entry, a sheriff officer is permitted to use ‘necessary reasonable force’ to enter. This means they are permitted to force a door, lock or break a window to enter.
You may be charged with a breach of the peace if you refuse entry to a sheriff officer.
What are your rights if a sheriff officer visits your property in Scotland?
Thankfully, you can still come to an arrangement to repay before the sheriff officer takes any of your possessions. At any stage in the process, you are able to make arrangements to pay the sheriff officer part or all of the debt.
If a sheriff officer has to force entry, which requires breaking a lock or breaking a window, the creditor may decide to pass the cost of the replacement or repair on to you.
If you believe that a sheriff officer’s behaviour has been unreasonable, you are able to submit a formal complaint by writing to the Sheriff Principal. You can do this by contacting the sheriff clerk at the local sheriff court. You can also contact the Society of Messengers-at-arms and Sheriff Officers (SMASO), as they will often handle complaints forwarded to them from the Sheriff Principal’s office.
What can a Sheriff Officer take?
A sheriff officer’s powers depend on the type of debt enforcement they are exercising against you.
In Scots law, the technical term for any form of debt enforcement is ‘diligence’.
Bank arrestment involves ‘attaching’, or legally seizing, the funds in your bank account and instructing the bank to transfer them to a holding account.
Arrestment of Earnings
If you are employed, your employer can be instructed to make regular deductions from your wages after the issuance of an earnings arrestment order.
Attachment Order (property outside of the home)
An attachment order allows a sheriff officer to seize any goods from outwith the home, unless they are considered exempt. This includes any items which are stored within a locked garage or shed, provided the sheriff officer can force entry.
Exceptional Attachment Order
An exceptional attachment order, on the other hand, gives a sheriff officer permission to enter your house in order to seize goods.
When can an Exceptional Attachment Order be issued?
An exceptional attachment order is only valid if a creditor has been able to prove that they have already made reasonable attempts to recover the debt or negotiate the repayment of the debt with you.
If a creditor is able to prove that they did not pursue the above methods first because they did not believe that they would be able to recover their reasonable expenses and at least £100 towards the debt owed, they can proceed directly to issuing an Exceptional Attachment Order.
What items are exempt from seizure by sheriff officers?
As we’ve seen, Alice was issued an Exceptional Attachment Order. This means that a sheriff officer was permitted to seize goods from both inside and outside of her house.
She didn’t have many valuables. Could she tell them what to take? She didn’t know how she would manage without a fridge or washing machine.
Vehicles – This is only up to the value of £3,000. You must also be able to provide evidence that you require it, for example, to get to work, for childcare purposes or to provide care for a relative.
Mobile Home – This is only protected if it is classified as your main or only home.
Tools – This includes any machinery or tools which are required for you to be able to carry out your job, up to the value of £1,000.
Books and other educational items – up to the value of £1,000
Clothing and children’s toys
Essential household goods – this includes any white goods, furniture or bedding.
How do I know that a Sheriff Officer is who they say they are?
As we’ve already discussed, it is only the right of sheriff officers, acting under an attachment order or exceptional attachment order, to take your possessions.
Debt collectors do not have this right.
Still, you might be concerned that the person knocking at your door, claiming to be a representative of the sheriff court, is actually who they say they are.
You should always ask to check the identity of the sheriff officer that comes to visit as they are obliged to show you their ID if you request it.
They should also be able to produce a document bearing the crest of the Scottish court service. This document will usually contain the phrase ‘grants warrant for all lawful execution’, which gives a Sheriff Officer the right to enter your. Enter your home.
How can I prevent a sheriff officer from visiting my home?
The prospect of a visit from a sheriff officer is discomforting, to say the least.
Alice was determined not to let her son go through the ordeal of seeing a stranger enter their home and start rummaging through their belongings, so she got in touch with a debt advisor to explore what other options she had.
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Barry John Stewart and George Dylan Lafferty are authorised to act as insolvency practitioners in Glasgow and the UK by the Institute of Chartered Accountants of Scotland (ICAS).
1 According to the Annual Report from the Accountant in Bankruptcy. (https://www.aib.gov.uk/about-aib/statistics-data/aib-annual-reports-1986-present)
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