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

The request was partially successful.

Dear Hertsmere 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 Hertsmere 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, Hertsmere Borough Council

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foi, Hertsmere Borough Council

Dear Helen Barker,

I am writing in response to your Freedom of Information request received
20^th April 2020.

Your request has now been considered under the terms of the Freedom of
Information Act and/or Environmental Information Regulations and we are
able to respond as follows:

 

Your Request:

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 Hertsmere 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

 

Our Response:

1.       We will always listen to a resident if they contact us before the
summons is issued and would use our discretion as to whether or not to
proceed

2.       Each case is decided on its own merits but factors such as
illness, disability, sudden drop in income as well as issues around the
property are all taken into account.

 

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Thank you for your request.

 

Kind regards

 

 

Information Services

Hertsmere Borough Council | Civic Offices | Elstree Way | Borehamwood |
Herts | WD6 1WA

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3. mailto:[Hertsmere Borough Council request email]

Dear foi,

Thank you for your response. On a related matter, I would like it clarifying whether an arrangement is possible after the summons stage and if so would the liability order not be proceeded with and the £65.00 summons /£10.00 liability order costs be avoided?

I have been unable to find any information on the council's website and there doesn't seem to be a debt recovery policy available to the public.

Yours sincerely,

Helen Barker