Statutory Instrument is ultra vires? – Reg 34 of Council Tax Regulations

[outlawla]

Something has never quite added up in the way regulations are formulated with regards to court costs in Council Tax recovery.

 

Paragraph 5 of Regulation 34 of the Council Tax (Administration and Enforcement) Regulations 1992 provides that local authorities may impose court costs on a Council Taxpayer in respect of issuing a summons before the case is even brought before the bench. This, as would be understood by most people is not the way a party to court proceedings is normally awarded costs.

 

It may be that the reason regulations provide for the authority to claim a sum of costs without the court's involvement is because the statutory instrument is ultra vires.

 

The primary legislation laying down the boundaries from which Regulation 34 derives is the Local Government Finance Act 1992. The relevant provision of Schedule 4 paragraph (3) (liability orders) of the 1992 Act confers power on the secretary of state as below:

 

Liability orders

 

3 (1) Regulations under paragraph 1(1) above may provide that—

 

(a) the authority concerned may apply to a magistrates’ court for an order (a “liability order”) against the person by whom the sum is payable;

 

(b) the magistrates’ court shall make the order if it is satisfied that the sum has become payable by the person concerned and has not been paid.

 

(2) The regulations may include provision that the order shall be made in respect of an amount equal to the aggregate of—

 

(a) the sum payable; and

 

(b) a sum (of a prescribed amount or an amount determined in accordance with prescribed rules) in respect of the costs incurred in obtaining the order.

 

(3) The regulations may include provision that, where the sum payable is paid after the order has been applied for but before it is made, the magistrates’ court shall nonetheless make the order in respect of a sum (of a prescribed amount or an amount determined in accordance with prescribed rules) in respect of the costs incurred in applying for it.

 

(4) The regulations may include—

 

(a) provision prescribing steps to be taken before an application may be made;

 

(b) provision that no application may be made after a prescribed period has expired;

 

© provision prescribing the procedure to be followed for the initiation of an application (which may include provision as to form);

 

(d) provision prescribing the procedure to be followed in dealing with an application;

 

(e) provision prescribing the form and contents of an order.

As suggested, the statutory instrument with regards regulation 34 appears to have been enacted without the legal powers of the primary legislation.

 

The primary legislation (as indicated above "liability orders") does not give legal powers such that the statutory instrument may include provision for the billing authority to impose costs before it has obtained a court order, however, this is what regulation 34(5) provides:

 

(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or tendered to the authority an amount equal to the aggregate of—

 

(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

 

(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender,

 

the authority shall accept the amount and the application shall not be proceeded with.

 

This suggests that if the respective secretaries of state (England and Wales) had made the regulations within the powers conferred on them, regulation 34 would not have made provision that is included in paragraph (5).

 

Additionally

 

Sub-paragraph (3) of paragraph 3 to Schedule 4 of the 1992 Act confers powers on the relevant secretaries of state that the regulations may include provision that, where the sum payable is paid after the order has been applied for but before it is made, the magistrates’ court shall nonetheless make the order in respect of a sum in respect of the costs incurred in applying for it.

 

The statutory instrument (Council Tax Regulations) with regards regulation 34(8) appears to have been enacted without the legal powers of the primary legislation. Regulation 34(8) is as follows:

 

(8) Where the sum payable is paid after a liability order has been applied for under paragraph (2) but before it is made, the court shall nonetheless (if so requested by the billing authority) make the order in respect of a sum of an amount equal to the costs reasonably incurred by the authority in making the application.

 

The primary legislation does not give legal powers such that the regulations may include provision that the court shall make the order in respect of a sum of an amount equal to the costs reasonably incurred by the authority in "MAKING THE APPLICATION".

 

There is an important distinction in that the primary legislation provides for an order in respect of the costs incurred in "APPLYING" for it.

 

This means that if the respective secretaries of state had made the regulations within the powers conferred on them, regulation 34(8) would make provision for where the sum payable is paid after a liability order has been applied for but before it is made, the court shall nonetheless (if so requested by the charging authority) make the order in respect of a sum of an amount equal to the costs reasonably incurred by the authority for issuing the summons.

 

Of importance is that this would essentially be a lesser sum than whatever sum is claimed to be an amount equal to the costs reasonably incurred by the council in obtaining the order (Regulation 34(7)(b)).

 

You would therefore expect that the Council Tax legislation with regards regulation 34 to be more in line with Business Rates in Regulation 12 of the Non-Domestic rating (Collection and Enforcement) (Local lists) Regulations 1989.

[outlawla]

Additional information making the case that the Council Tax Regulations (Reg 34(5)) is ultra vires the enabling Act is provided at Annex C of this draft Consent Order.

[adamna]

Outlawla, please empty your inbox, or pm me your email address/phone number?

[honeybee13]

adamna, we don't recommend advising off forum for various reasons. And it's not a good idea to exchange addresses or email details either, for reasons of online security. Please stick to advice on the thread.

 

HB

[adamna]

difficulty editing spelling

Edited September 26, 2015 by adamna
spelling

[adamna]

Thanks, but I'm not looking for advice, nor offering it. If for some reason they don't want to empty their (full) inbox so I can continue a conversation, I was offering an alternative.

[AndyOrch]

But that is against Site Rules ....so keep it on thread and the OP will decide if they wish to continue.

 

Regards

 

Andyorch

[outlawla]

Why all the officialdom? Do the moderators think as I suspect that tomtubby (bailiff advice) is using one of her many AKAs to obtain some information that she can use to my detriment?

[adamna]

Deffo not tomtubby, you can see my message in 'the other place' if you like.

[citizenB]

Why all the officialdom? Do the moderators think as I suspect that tomtubby (bailiff advice) is using one of her many AKAs to obtain some information that she can use to my detriment?

 

tomtubby does not have any akas, let alone many.