FOI request (FOIR-200824830)
Exercising discretion when applying to the court for a Council Tax Liability Order
Requested Mon 27 April 2020
Responded Wed 10 June 2020
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 Hastings 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
Q2. Before issuing a summons:
1. All outstanding correspondence on the account will be cross checked first, including emails and letters. If these are present, the account will be placed on hold until all such queries are resolved.
2. Ensure monies have been prioritised to maintaining the in-year debt.
3. Check for claim for Council Tax Reduction and place temporary hold on account where a claim is outstanding.
4. Advise taxpayers to prioritise their current and future liabilities, and aim to set up long term payment plan to settle old debt.
5. Where there is evidence of an outstanding application for Universal Credit, a temporary hold can be put on account
6. Parameters are set within the process to allow for balances at specific level to be selected for summonses.
7. Payment receipt and cash allocation is checked as part of the process Other considerations are taken into account before issuing a summons, each case is considered on its merit and we aim to resolve the matter before issuing the summons. The above list is not exhaustive.
Freedom of Information