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

Helen Barker made this Freedom of Information request to Caerphilly County Borough Council

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The request was successful.

Dear Caerphilly County 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 Caerphilly County 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

WWW: FOI, Caerphilly County Borough Council

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Dear WWW: FOI,

Response to this request is long overdue. By law, under all circumstances, Caerphilly County Borough Council should have responded by now

Yours sincerely,

Helen Barker

WWW: FOI, Caerphilly County Borough Council

Dear Helen Barker
 
FREEDOM OF INFORMATION ACT 2000 - INFORMATION REQUEST
 
Thank you for your request for information received on 9th April 2020. We
have considered your request and enclose the following information
 
(1) Does Caerphilly County 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)?
 
Yes
 
(2) If yes to (1) what factors are taken into consideration
 
We issue more than the minimum number of statutory reminder notices
required for the current year statutory monthly instalments under The
Council Tax (Administration and Enforcement) Regulations 1992, as
amended.  If a council tax payer pays the amount overdue on receipt of a
reminder notice, but then does not pay a subsequent instalment by the due
date, we will issue a further reminder notice, irrespective of whether the
statutory minimum of 2 reminder notices have already been issued.
 
We also issue a 'discretionary' final notice, i.e. we always issue a
notice under regulation 33 of the above-named regulations prior to making
a complaint to a justice of the peace requesting the issue of a summons. 
These actions mean that council tax payers have more opportunities to make
the required payment and/or contact us to discuss their account before
legal proceedings are instituted.
 
There may be circumstances that result in an application for a summons to
be issued not going ahead, for example, where it is clear that a dwelling
is to be removed from the banding list by the Valuation Office Agency, or
where we are advised by our Benefit Section that an award of council tax
reduction is to be made very shortly.  We are unable to list all factors
because each case will be considered based on the relevant details
available.
 
We supply this information based on your original request. If this is not
what you wanted or if you feel we have not fully understood your request
please do not hesitate to contact me to clarify your exact requirements.
 
If you have any queries or concerns or are in any way dissatisfied with
the handling of your request please contact us.
 
Yours sincerely
 
GARETH GRIFFITHS
Information Governance Officer
 
 
 
 

Freedom of Information Act 2000 / Environmental Information Regulations
2004
 
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  Tel: 0330 414 6421
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