Exercising discretion when applying to the court for a Council Tax Liability Order

The request was partially successful.

Dear Ashford Borough Council,

The Council Tax (Administration and Enforcement) Regulations 1992 (the "Regulations") confer a duty on the billing authority to exercise discretion under regulation 34(1) when deciding whether to institute a complaint to the Magistrates' court to enforce payment.

Regulation 34(1) as amended by Regulation 15 of SI 1992/3008 states, with the relevant part emphasised, as follows:

"If an amount which has fallen due under paragraph (3) or (4) of regulation 23 (including those paragraphs as applied as mentioned in regulation 28A(2)) is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, THE BILLING AUTHORITY MAY, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable."

Regulation 34(2) states as follows:

"The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding."

The following are examples (but by no means exhaustive) of what are reasonable factors a recovery officer should take into account in exercising discretion to institute a complaint to the Magistrates court under paragraph (2) of regulation 34 of the Regulations:

1. the level of debt outstanding

2. any payments made subsequent to the full amount becoming due and time remaining of the financial year

3. are circumstances indicative of the debt being settled without resorting to enforcement

4. consider if enforcing the debt would unnecessarily subject the taxpayer to additional costs etc. and therefore amount to a penalty (see 3 above)

5. ensure monies have been prioritised to maintaining the in-year debt

6. allocate to the in-year any monies posted to arrears (or sufficient of it) that would if it had not been misallocated prevented the in-year liability also falling in arrears (see 5 above)

7. check for benefit claims or appeals already in the system and refrain from taking enforcement action where such genuine cases are unresolved

Q1. Does Ashford Borough Council exercise discretion before proceeding under regulation 34(2) of the Council Tax (Administration and Enforcement) Regulations 1992 to request a summons from a justice of the peace (it may be an automated process)

Q2. If yes to (1) what factors are taken into consideration

Yours faithfully,

Helen Barker

FOI Requests, Ashford Borough Council

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Ashford Borough Council

1 Attachment

Dear Helen Barker, Thank you for your recent Freedom of Information
request, please find attached our response. Kind regards Freedom of
Information Team

Dear Ashford Borough Council,

Thank you for your response.

My reading of the relevant part of the council's website is that no discretion is exercised before requesting the issue of a summons and the procedure is effectively automated (the defendant incurs a £60 sum for that action). Subsequently, if the defendant wishes to propose an arrangement to pay which is acceptable to the council he must agree to having a further £65 added to his bill which is presumably to compensate the council for the officer time attributed to making the application for a Liability Order (on the hearing date).

The website also implies in a list what would be valid defences against the issue of a Liability Order at the court hearing and another stating what is not a valid defence. There are two obvious additional defences that would be valid if no discretion is exercised prior to requesting the issue a summons, i.e. it is an automated procedure. They would be;

1. that the billing authority has not (does not) comply with regulation 34(1) of the Council Tax (Administration and Enforcement) Regulations 1992, and

2. expenditure amounting to £60 was not incurred by the council in respect of instituting the complaint

I would appreciate the council confirming that the response to my request is "No" to (Q1) and therefore "N/A" in respect of (Q2).

Yours faithfully,

Helen Barker