OWING COUNCIL TAX
We all have to pay council tax. If someone owes an amount in council tax, the council may bring the case to the magistrates’ court, and the magistrates must then decide whether the debtor is guilty of wilful refusal or culpable neglect to pay the full council tax owed. If the magistrates find wilful refusal or culpable neglect, then they have a number of options of what to do. They may order deductions from benefits or from wages or salary to pay off the debt. They can remit the debt if the debtor has no benefits, has no savings, and doesn’t receive any wages or salary. Imprisonment is a last resort and must not be imposed if there is an alternative. Magistrates have no powers to punish for council tax default.
The law is set out in Regulation 47 of the Local Government Finance Act 1992. How that law should be enforced has been laid down by the High Court in a series of rulings which were made in the 1990s when thousands (about 1,200 people each year in 1993 and 1994) were sent to prison for not having paid in full their poll tax. Some of these imprisonments were challenged in the High Court and the High Court declared them to have been unlawful. This made the law clear about when magistrates can order custody for someone who owes poll tax. The case law regarding poll tax imprisonment applies equally to imprisonment for council tax default, as the law on enforcement is essentially the same. When reviewed by the High Court the vast majority of these poll tax committals were held to have been unlawful. When challenged at the High Court, council tax imprisonment has been found to be unlawful.
AN ORDER TO REPAY THE DEBT
Magistrates Courts may order someone who owes council tax to repay the debt in instalments. A recent case in the High Court considered such orders.
The Court said:
It is usual, although not obligatory, for magistrates to suspend at least a first committal order on condition that the subject makes regular instalment payments towards the arrears. However, they cannot make any unreasonable order for repayment. Therefore, each instalment to be paid must be reasonable in amount, given the assessment of means that has been conducted. Furthermore, the period for which instalments are to be paid must be reasonable. This is considered further below … but, generally, where the period is two or three years, an order will be reasonable. Cases will be rare in which an instalment period of over three years will be appropriate. In no case has an instalment period of over five years been considered appropriate.
WHAT THE MAGISTRATES MAY DO
The magistrates have no powers to punish anyone who owes council tax. Owing poll tax or council tax is a civil debt, it is not a crime. The power to order imprisonment is to be used to force payment where the debtor has the means to pay. This power may not be used to punish someone for not having paid.
‘The court has now repeatedly made clear that the purpose of the powers of the court under Regulation 41 are not the powers of punishment for past misdeeds, but powers to ensure future payment of past liabilities’.
Imprisonment is a last resort. It cannot be imposed if there is an alternative. ‘It is established that it is wrong in law to pass a sentence of imprisonment when an alternative to imprisonment is available.’
There is always an alternative open to the court. If the debtor is on benefit the magistrates may order deductions from benefit until the debt is cleared.
If the debtor works, the magistrates can order attachment of earnings, and the employer must pass the money to the council before the debtor receives wages or salary.
If the debtor has no benefits and receives no wages, but has money in the bank, the court can order an attachment to that money to clear the debt.
If the debtor has no money in the bank, no wages, no benefits, they cannot be refusing to pay, nor can they be guilty of ‘culpable neglect’ to pay: there is therefore no power to commit to prison.
The court can cancel the debt if is seems to be the just thing to do.
There is currently a campaign organized by Naima Sakande of the Centre for Criminal Appeals asking the Government to repeal the provision to commit someone to prison for up to three months because of council tax default. We argue that there is no place in a modern society for the cruel and unlawful practice of imprisoning some of the people who have the most difficulties in life and are least able to cope, for the ‘crime’ of not having a circle of friends or family who can come to the rescue when times are tough. In these days this legacy of the past should be taken o the statute book. Prison is a place for the most serious and dangerous of criminals, those whose crimes have caused the most trauma and damage. It is no place for those who have experienced financial hardship and are in debt: https://www.theguardian.com/money/2018/mar/26/taking-action-for-those-jailed-over-unpaid-council-tax
R.Epstein, Imprisonment for Debt, Criminal Law & Justice Weekly, Vol. 181, 4 February 2017.
Rona Epstein is a Research Fellow in Coventry Law School