Harassment of People in Debt by Creditors
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 factsheet outlines:
The relevant section of the Administration of Justice ActThe Office of Fair Trading (OFT) Debt Collection Guidance on harassmentHow 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: 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; falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it; falsely represents himself to be authorised in some official capacity to claim or enforce payment; orutters 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 licenses.
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 propertyusing 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.
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
