Community charge — Elements of distress — Common law rules — Application of law of distress — Whether posting of notice constitutes a distress — Whether physical entry necessary — Appeal by taxpayer allowed
The appellant, who lives at 11 Fairhaven Road, Penwortham, Lancashire, owes £329.94 in respect of her community charge liability. On November 21 1990 the respondent authority instructed bailiffs to levy distress under reg 39 of the Community Charge (Administration and Enforcement) Regulations 1989. On February 21 1991 a bailiff inserted a notice of distress and a draft walking possession agreement, the latter signed by the bailiff but not by the appellant, and other documents through the appellant’s letter box. The appellant took no action and made no proposals to pay.
The appellant appealed by way of a case stated from a decision of the South Ribble Magistrates, who decided that the action of the bailiff did constitute a relevant part of the process of levying a distress under the regulations. The case stated by the magistrates being whether a lawful distress may be made of goods within a dwelling-house by posting through the letter box, in a sealed envelope, a notice of distress.
Held The appeal was allowed.
It is improbable in any present-day context that nothing short of impounding will constitute proper distress. The basic principles of distress involve: (1) entry into the premises, the seizure there of goods and the subsequent securing (impounding) of the goods; (2) a right to distrain necessarily involves a right to enter, which can only be exercised without a forcible entry; (3) seizure may be actual or constructive; (4) what constitutes impounding is uncertain and so too is the effect of a walking possession agreement as against strangers; and (5) once the goods are impounded the distress is complete subject only to abandonment.
There had been no entry by the bailiff into the appellant’s property; the decided authorities point to the insufficiency of a mere posting of documents to constitute a distraint of goods. The regulations support the common law rules that an entry is required and do not enable a different conclusion to be reached.
Nigel Ley (instructed by J S Sierzant & Co, of Chorley, Lancashire) appeared for the appellant; and Charles Garside (instructed by the solicitor to South Ribble Borough Council) appeared for the respondents.
