Powys County Council v Hurst, Court of Appeal - Administrative Court, July 04, 2018, [2018] WLR(D) 413,[2018] EWHC 1684 (Admin)

Resolution Date:July 04, 2018
Issuing Organization:Administrative Court
Actores:Powys County Council v Hurst
 
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Neutral Citation Number: [2018] EWHC 1684 (Admin)

Case No: CO/1374/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Cardiff Civil Justice Centre

2 Park Street

Cardiff CF10 1ET

Date: 04/07/2018

Before :

LORD JUSTICE HICKINBOTTOM

and

LORD JUSTICE SINGH

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Between :

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Jonathan Elystan Rees (instructed by Solicitor, Powys County Council) for the Appellant

The Respondent in person

Hearing date: 19 June 2018

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Lord Justice Singh :

Introduction

  1. This is an appeal by way of case stated against the decision of District Judge (Magistrates' Court) Neil Thomas given on 18 February 2018. By that decision the District Judge held that the Appellant was required to consider proceeding under the Attachment of Earnings Act 1971 (``the 1971 Act'') as an alternative method of recovering unpaid council tax before applying to commit the Respondent to prison for non-payment of that tax. Accordingly he discharged the earlier order for committal which he had made but then suspended on terms.

  2. The District Judge reached his decision on the basis that it was open to the Appellant to seek an attachment of earnings order in the County Court in respect of the Respondent's pension. The main issue in this appeal is whether that course is open to a billing authority such as the Appellant as a matter of law.

  3. At the hearing before this Court, which took place in Cardiff, we heard submissions from Mr Jonathan Elystan Rees on behalf of the Appellant. We also heard from the Respondent, who appeared in person. We are grateful to them both for their submissions. At the hearing the Respondent applied for an adjournment. We refused that application and said that we would set our reasons for doing so in our written judgment, which we now do (at paras. 54-55 below).

    Factual background

  4. For present purposes the relevant factual background can be summarised very briefly.

  5. The Appellant is the relevant billing authority for the purposes of council tax. The Respondent is liable to pay council tax. The Appellant has pursued council tax liabilities against the Respondent over a number of years. Liability orders were obtained by the Appellant.

  6. On 1 December 2016 an order was made by the District Judge committing the Respondent to prison for non-payment of council tax. It was found that the Respondent had wilfully refused to pay. That committal was suspended on payment terms. The Respondent subsequently defaulted on payment and so, on 29 September 2017, the Appellant applied to the Court for an order committing the Respondent to prison in accordance with Regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992 No. 613) (``the 1992 Regulations'').

  7. The District Judge observed that the Respondent was in receipt of a police pension and raised the issue whether an application could be made under the 1971 Act. The Appellant indicated that this option was not open to it and therefore had not been considered. The application to commit was adjourned on a number of occasions for reasons which are unconnected to this appeal.

  8. A further hearing took place on 18 February 2018. On that occasion the District Judge held that pensions are income for the purposes of the 1971 Act; that a liability order is a ``judgment debt'' within the meaning of that Act; and therefore that the Appellant was not precluded from applying to the County Court for enforcement. On that basis he was of the view that all other enforcement options had not been exhausted prior to the application to commit. Accordingly the District Judge quashed the committal order which had been made on 1 December 2016.

    The case stated for the opinion of this Court

  9. The two questions stated for the opinion of this Court are:

    ``(i) Are the local authority precluded from applying to the County Court for an attachment of earnings order under the Attachment of Earnings Act 1971?

    (ii) Was I entitled to dismiss the application and quash the commitment because I concluded that the local authority had not satisfied me that they had exhausted all alternatives to custody before applying to commit Mr Hurst to prison?''

    The Legal Framework

  10. It is unnecessary for present purposes to rehearse the legal framework in great detail. It was helpfully set out by Hickinbottom LJ in R (Woolcock) v Secretary of State for Communities and Local Government and others [2018] EWHC 17 (Admin); [2018] 4 WLR 49 (``Woolcock''), at paras. 3-17. Here I will do no more than to outline the legislative scheme by reference to the judgment of Hickinbottom LJ.

  11. Council tax is a system of local taxation introduced by the Local Government Finance Act 1992 (``the 1992 Act'') to replace the community charge. It is now used in England, Wales and Scotland to fund approximately one-quarter of expenditure on local services. The applicable law and procedure in England (where there are 326 billing authorities) and Wales (where there are 22 billing authorities) is materially the same: see para.3 of Woolcock.

  12. Section 14(3) gives effect to the provisions of Sch. 4 to the 1992 Act. That schedule is entitled `Enforcement: England and Wales' and contains provisions about the recovery of council tax: see para. 9 of Woolcock.

  13. Para. 1 of Sch. 4 to the 1992 Act confers a power on the Secretary of State to make regulations in relation to the recovery of council tax. By Article 2(a) of, and Sch. 1 to, the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999 No. 672) and para. 30(2)(a) of Sch. 11 to the Government of Wales Act 2006, in respect of Wales that function now lies with the Welsh Ministers, to whom is also devolved general competence in respect of ``Local Government Finance'' (sections 107-108 of, and para. 12 of Sch. 7 to, that Act) see para. 10 of Woolcock.

  14. The relevant regulations which have been made under para. 1 of Sch. 4 to the 1992 Act are the 1992 Regulations. They enable council tax to be collected in monthly instalments. Regulation 23 requires a local authority to send out a reminder notice to a council tax payer when an instalment is missed, giving him 7 days to pay the outstanding instalment. If no payment is made, the right to pay by instalments is lost, and the entire amount of council tax becomes due. If the taxpayer fails to pay that sum, and does not respond to a final notice served under Regulation 33, then the authority can seek a liability order from the Magistrates' Court, under para. 3 of Sch. 4 to the 1992 Act and Regulations 33-36 of the 1992 Regulations: see para. 12 of...

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