R (on the application of Aldous) v Dartford Magistrates’ Court

Council tax – Liability — Committal – Claimant admitting liability for unpaid council tax – Magistrates acceding to local authority’s request for her committal to prison – Claimant seeking judicial review of decision — Whether magistrates erring in law in failing to take into account claimant’s offer to make weekly payments and effect on her children of immediate committal to prison — Application grantedThe claimant was liable to the local authority for unpaid council tax of over £7,000 for the years 2003-09. She was summoned to attend the magistrates’ court. The magistrates were shown a schedule of liability and were informed that the liability orders had been served. They were also told that bailiffs had been unable to levy the outstanding sums by distress, despite repeated attempts to do so.The claimant completed the standard form showing her income and liabilities and offered to pay £20 per week but the magistrates acceded to the local authority’s request to imprison her for the maximum period of 90 days, pursuant to regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613).The claimant applied for judicial review of the magistrates’ decision to issue a warrant of committal against her. She argued that her committal had been unlawful because, inter alia, the magistrates had failed to take into account her offer to pay a weekly sum to discharge her liability and the effect of an immediate committal to custody on her children.Held: The application was granted. Under regulation 47, the magistrates had to treat each liability order separately and a failure to do so would be fatal to their decision. The magistrates had not made separate enquiry into the circumstances relevant under regulation 47 for each of the years of liability. An inquiry had been made as to means, but that had been so inadequate that it did not to meet the requirements of the regulations. No inquiry had been made as to whether the failure to pay that had led to the application stemmed from wilful refusal or culpable neglect. Further, the magistrates had to decide, as part of their duty under regulation 47(2), whether the failure was due to wilful refusal or to culpable neglect in the sense of deciding which, rather than whether, it was due to one or the other. The period of imprisonment imposed under regulation 47(3) had to vary according to the culpability of the person in question. It was less serious to fail to pay rates through culpable neglect than through wilful refusal. It followed that, in order to fix the amount of term of committal, it would be necessary to have determined whether wilful refusal or culpable neglect had led to the failure to pay. The magistrates had failed to distinguish between those two and to make the finding that was necessary as a precondition to fixing a term of imprisonment.Moreover, the purpose of imprisonment under regulation 47 was coercive. It was to persuade a person who could pay to do so, rather than continuing to wilfully refuse or culpably neglect payment. The magistrates had not considered the purpose of imprisonment. It was clear that the local authority sought commitment. It was for the magistrates to decide whether the appropriate way of coercing the claimant was an immediate term of imprisonment, which was the effect of their order. No attempt had been made to persuade the claimant to pay in any other way.Further, the magistrates had not considered what period would be appropriate bearing in mind the possibility of persuading the claimant to pay and the level of her wilful refusal or culpable neglect. The failure to make that enquiry did not enhance their judgment.Finally, it was significant, that the magistrates had failed to take into account the effect of an immediate committal to custody on the claimant’s children. The claimant had not been aware that the result of the day’s court proceedings might be that she would go immediately to prison. Two children were at school who did not know that that might happen. The magistrates had not enquired into what the circumstances of the children would be if their mother did not return home that night but went to prison. In deciding whether a committal for debt was appropriate, the duties of a court could be no less than they were in fixing a term of imprisonment on a criminal matter. The existence of children could not keep a person out of prison who should be imprisoned, but a sentencing court needed to be able to bear in mind what the effect on the children would be. It there were children, and if the court did not have the information it needed to assess the effect of the parent’s imprisonment on them, the court had to make enquiries so that it was properly informed. Those enquiries had not been made in the instant case.Ian Wise QC (instructed by Bhatia Best Solicitors, of Nottingham) appeared for the claimant; the defendant and the interested party did not appear and were not represented.Eileen O’Grady, barrister