Dear Brighton and Hove City 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 Brighton and Hove City 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
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2. mailto:[email address]
Dear Brighton and Hove City Council,
Thank you for your response.
I have been informed that the council imposes a total £122.50 costs on customers in respect of obtaining a Council Tax liability order which pretty much accounts for why the council asserts that the costs applied are the costs incurred to the public in recovery of the debt (and adhere to the legislation). The costs have evidently been inflated to fund the running of the council tax and enforcement departments.
The relevant legislation does not provide for the cost of the 'recovery of the debt' to be recharged to the person against whom the council obtains a liability order in respect of the costs of the application. The law only allows the council to be reimbursed the expenditure it incurs to obtain the liability order which amounts to nothing more than seeking the court's permission to enforce payment. Or, less than this in a case where the customer pays or tenders the aggregate of the outstanding amount and costs after being served a summons but before the hearing takes place. In that case, only a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the payment or tender, may lawfully be reclaimed.
The council's website says that a customer who has received a court summons (incurring £102.50) needs to set up a Direct Debit instalment plan before the court date to avoid further costs (£20.00 liability order). However, there is nothing in the relevant legislation (SI 1992/613) that says the amount tendered has to be settled by way of Direct Debit.
Paragraph 34(5) of the regulations, are as follows (with emphasis):
“(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or TENDERED to the authority an amount equal to the aggregate of—
(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and
(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application UP TO THE TIME OF THE payment or TENDER,
the authority shall accept the amount and the application shall not be proceeded with.”
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