Enforcement action: distraint: carrying out a distraint: right of entry
You should always enter by the front door or main entrance of the premises and at the invitation of the defaulter.
Although you have an implied right under the legislation to enter the defaulter’s premises to distrain on the defaulter’s goods, you must not force your way in.
Once you are on the premises and have begun to levy distraint you are not obliged to leave. As long as you do not behave illegally, you are carrying out your statutory duty under TMA1970/S61, SSAA1992/S121A or FA1997/S51.
However, you may exceptionally decide to leave the premises after you have started to levy because you feel it is unsafe to remain. In that case, provided you have not indicated that you are abandoning the distraint, you may return, accompanied, as soon as is practical to complete it.
If you are unable to persuade the defaulter to invite you to enter the premises in the normal way, or you are refused entry, the higher debt management officer should consider whether a personal approach may persuade the defaulter to co-operate, or whether another means of enforcing payment would be preferable.
S61 (2) TMA 1970, S121A (2) SSAA92 and Para 2(2), Sch 12 FA 03 allow you to apply under oath to a Justice of the Peace for a warrant to break open the premises to levy distraint for direct taxes, NIC and SDLT where you cannot gain access. These provisions are rarely used and such a warrant would be granted only in exceptional circumstances, depending on the quality of the evidence.
There is no statutory right to apply for a warrant to break open premises for indirect taxes.
Re-entry to gain access to distrained goods
This should not be confused with a ‘break-open’ warrant in order to levy distraint. If a defaulter or 3rd party locks up or conceals goods held under a Walking Possession agreement contact your Technical Higher Officer for advice (see also ‘Offences connected with distraint’ at DMBM656230).