Woolcock, R (On the Application Of) v Cardiff Magistrates' Court & Anor (No 1)

This claim for judicial review relates, firstly, to two orders made by the Bridgend Magistrates’ Court (“the magistrates”) on 20 October 2015 requiring the Claimant, Melanie Woolcock, to pay certain sums of money in unpaid council tax in respect of each of two properties, at the rate of £5 a week per property, and fixing a period of imprisonment in default of payment of 35 days and 50 days respectively and, secondly, to an order made on 18 July 2016 committing the claimant to prison for a period of 81 days for non-payment of the amounts due.

The Claimant was arrested on 8 August 2016 and taken to prison where she spent 40 days. On 16 September 2016, the claimant made an urgent application to the Administrative Court. That application was considered on the same day and Whipple J. granted interim relief in the form of bail and ordered that the application for permission be listed, with the substantive application to be heard immediately afterwards, as soon as possible after 14 October 2016.

In essence, the Claimant contends that the magistrates adopted a flawed approach to the assessment of her culpability for non-payment of council tax and the making of the orders on 20 October 2015, and imposed a period of imprisonment in default of payment which was so excessive as to be unlawful. She further contends that the magistrates erred in committing her to prison on 18 July 2016 as they failed to take steps to secure her attendance at court and to obtain the information necessary to any decision to commit her to prison. There is an additional ground of challenge to the lawfulness of the system by which liability for payment of council tax is dealt with.

The power to commit a person for non-payment of council tax is contained in regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992 (“the Regulations”). That regulation provides so far as material that:

issue a warrant of commitment against the debtor, or

fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just”.

The warrant is to be made in an amount reflecting the outstanding amount of council tax and the costs reasonably incurred by the local authority seeking payment: see regulation 47(4) of the Regulations. The maximum period for imprisonment is not to exceed 3 months (see regulation 47(7) of the Regulations).

There is also provision for a magistrates’ court to remit the amount outstanding rather than issue a warrant or fix a term of imprisonment in default of payment. Regulation 48(2) of the Regulations provides that:

The facts appear from the following material. First, there is the contemporaneous documentation contained in the magistrates’ court file. The Bridgend Magistrates’ Court was closed shortly after the committal of the Claimant to prison and the file was provided by the 1st Interested Party, Cardiff and the Vale Magistrates’ Court to which the files of the Bridgend Magistrates’ Court have been transferred. Secondly, there is the contemporaneous records of the 2nd Interested party, Bridgend Borough Council (“the Council”), who applied for the orders. Thirdly, there is a witness statement made by the Claimant setting out her recollection of events. Fourthly, there is an acknowledgement of service made by the acting legal team manager of the 1st Interested Party. That document very properly sets out the history of the matter in order to assist this court in dealing with the claim for judicial review. There is, however, no statement from the solicitor who represented the Claimant at the hearing on 20 October 2015. That solicitor was the duty solicitor at the magistrates’ court and the Claimant did not have a record of the solicitor’s name. There is no witness statement from the officers of the Council who attended the magistrates’ court on 20 October 2015 and 18 July 2016. The information is not complete. The factual position, so far as it appears from those sources, appears to be as follows.

The Claimant is a single mother. She lives with her son. The Claimant failed to make payments of council tax in respect of two properties that she occupied. The first was Flat 3, Precinct Rest Bay, Porthcawl where the Claimant failed to pay council tax between 1 April 2009 and 21 April 2013, that is, over five different council tax years. The total amount unpaid, including costs, was £2,992.78. The second was 1 Seagull Close, Porthcawl where the Claimant had failed to pay council tax between 22 March 2013 and 31 March 2014, that is, over two council tax years. The total amount including costs in relation to that property was £1,748.97.

On 14 August 2014, the magistrates issued two committal summonses stating that the Council had applied for a warrant for committal to prison for default in the payment of council tax. The first summons, related to the Precinct Rest Bay property and identified the five periods in respect of which council tax remained unpaid, and the amount, including costs, as follows:

The second committal summons related to 1 Seagull Close, Porthcawl and showed the periods and the amount of council tax and costs as due as follows:

The two committal summons required the Claimant to attend at the magistrates’ court on 22 September 2014. The Claimant did not attend court on that date. An arrest warrant was issued.

The Claimant was arrested. She attended a hearing at the magistrates’ court on 20 October 2015. She was represented by the duty solicitor. In her statement, the Claimant says that she had explained to the duty solicitor that she had struggled making household payments and prioritised payment of rent, gas, electric and buying food. Having paid those, the Claimant says that she struggled to pay her council tax. She says in her witness statement that she went through her income and expenditure (it is unclear from the statement whether she did this with the duty solicitor alone or also explained those matters to the court). She does state in the witness statement that her solicitor explained the position to the court and it was agreed that she would pay £10 a week towards the arrears.

There is a handwritten note of the hearing prepared, it seems, by the clerk to the magistrates. That records the following:

The acknowledgement of service of the assistant legal manager, for the 1st Interested Party, accompanied by a statement of truth, gives the following description of what occurred at the hearing on 20 October 2015. It states that the court was provided with an up to date statement of account, that the court was informed that other options by way of recovery of the sum had failed to secure payment and that the Claimant had been working part-time in a sports shop but had buried her head in the sand. It states that a means inquiry was conducted in relation to the full period of liability and default. It states that the Claimant accepted that she was guilty of culpable neglect. It also states that the court was informed that the claimant was no longer well enough to work and that an attachment of earnings was not an option for the court. The Claimant offered to pay £5 a week in respect of each property. The acknowledgement of service notes that the magistrates found that there was culpable neglect, that they accepted the offer to pay £5 a week in respect of each property and considered that this was a realistic sum of money which the Claimant could afford. The court was informed that the Claimant was in receipt of child tax credit and child benefit and would be making a further claim for benefit.

On 20 October 2015, the magistrates therefore made the following orders:

In respect of the summons in relation to 1 Seagull Close:

In respect of the summons relating to Precinct Rest Bay:

The Claimant did make payments of £10 a week for some months. The Claimant then failed to make payments. The Council wrote by letter dated 25 May 2016 to the Claimant at the address in 1 Seagull Close, Porthcawl in the following terms:

On 10 June 2016, notice was served on the Claimant that a complaint had been made to the magistrates’ court that the Claimant had failed to comply with the terms of postponement and that the warrant committing her to prison fell to be issued unless the Claimant paid the total amount outstanding which then stood at £4,536. The notice stated that the magistrates’ court would consider whether to issue the warrant for committal to prison at a hearing listed at 9.30 on 18 July 2016 and stated that the Claimant should attend the hearing. An officer of the Council has confirmed that that notice was sent to the Claimant by first class post to 1 Seagull Close, Porthcawl. The Claimant says in her witness statement that she did not receive any letters relating to the missed instalments or another court hearing.

The Claimant did not attend the hearing on 18 July 2016. The magistrates’ court then committed the Claimant to prison for a period of 81 days (the original period of 85 days – 35 days on one property, and 50 on the other - being adjusted to reflect the fact that the Claimant had made some payments). The warrant noted that the Claimant was guilty of culpable neglect, that a number of other options had been considered inappropriate, and directed that the Claimant be taken to prison and kept there for a period of 81 days unless the money was paid.

On 5 August 2016, the Claimant did make a payment of £100 towards the outstanding debt.

On 8 August 2016, bailiffs attended the Claimant’s home and informed her that she was under arrest for non-payment of council tax. They were told about the payment of 5 August 2016 but explained that the payment was too late as the warrant for committal had already been issued. Two police officers arrived and confirmed that the Claimant was under arrest and needed to go with the bailiffs. The Claimant has a son who was living with her. He was 17 years old at the time and was in full-time further education. The Claimant telephoned her mother to ask her to look after her son. The mother arrived. The Claimant was then taken to Bridgend Police Station in the bailiff’s car. She was subsequently taken to HMP Eastwood.

On 16 September 2016, the Claimant made an urgent application to the Administrative Court for interim relief in the form of bail. That was granted on the same day by Whipple J. who also directed that the application for permission for judicial review of the orders of 20 October 2015 and the warrant for committal issued on 18 July 2016 be heard as soon as possible after 14 October 2016, with the substantive application for judicial review to follow immediately if permission were granted.

On 31 October 2016, the claim was transferred to the Administrative Court in Wales as the claim involved a challenge to the decision of a magistrates’ court in Wales, made following an application by a Welsh local authority, and had its closest connection with Wales. The application for an extension of time to apply for judicial review of the orders of 20 October 2015, an application for permission to challenge the orders of 20 October 2015 and 18 July 2016, and the arguments on the claim itself were heard on 9 November 2016.

The grounds of challenge are as follows. In relation to the orders of 20 October 2015, the grounds are:

There was no proper inquiry into the Claimant’s means or the reasons for her failure to pay;

There was no consideration of alternatives to committal;

The conditions of postponement of the committal were unreasonable;

The terms of imprisonment fixed in default of payment were manifestly excessive; and

There was no consideration of the impact of the orders upon the Claimant’s son and the making of the orders involved a breach of Article 8 of the European Convention on Human Rights (“ECHR”).

There was no proper consideration of alternatives to activating the committal order.

There was no consideration of the impact of the orders upon the Claimant’s son and the committal involved a breach of Article 8 of the European Convention on Human Rights (“ECHR”).

There was an eighth ground of challenge, seeking to contend that the committal procedure itself as contained in the relevant statutory instrument is inherently unfair and unlawful. The Claimant’s solicitors served a copy of the claim on the Secretary of State for Communities and Local Government. Solicitors for the Secretary of State wrote by letter dated 8 November 2016 indicating that it would not be possible to respond by 9 November 2016 and indicating that, if the Claimant wished to proceed with this aspect of the claim, directions should be given requiring the Claimant to confirm within 21 days of judgment being given whether she wished to proceed with the claim as against the Secretary of State, and to file amended grounds seeking to add the Secretary of State as a defendant and seeking permission to proceed, and that the Secretary of State then be permitted to serve an acknowledgement of service, and the application for permission be considered on the papers, in accordance with the provisions of CPR 54. At the hearing on 9 November 2016, counsel for the Claimant confirmed that she was not seeking to proceed with that ground at the hearing but requested that directions be given for consideration of ground 8.

In relation to the procedural matters, I grant an extension of time for bringing the claim for judicial review of the orders of 20 October 2015. The time limit for challenging those orders began to run on 20 October 2015 and a claim should have been brought promptly and in any event within three months of that date as the grounds of challenge all existed as at the 20 October 2015. It is, however, appropriate to extend the time given that the case involves the liberty of the subject and the lawfulness of the detention of the Claimant. Further, the Claimant is within time to challenge the warrant for committal issued on 18 July 2016, and the validity of that warrant depends in large part upon the validity of the orders made on 20 October 2015.

Secondly, I grant permission to apply for judicial review of the decision of the 20 October 2016 on grounds 1 to 5 of the claim form and the warrant of committal issued on 18 July 2016 on grounds 6 and 7 of the claim form. I deal below with the challenge on ground 8.

The general principles governing the making of an order under regulation 47 of the Regulations are relatively well established in the case law. For present purposes, the material principles are these. First, the power to commit is intended to be used to extract payment of the debt not to punish the debtor. Secondly, it is clear from the terms of the regulation that the magistrates’ court must conduct a means inquiry in the presence of the debtor and must consider whether the failure to pay is the result of wilful default or culpable neglect. Thirdly, an order may be made if, but only if, the debtor is guilty of culpable neglect or wilful default. The means inquiry will need to consider the period or periods in respect of which liability is due in order to determine, amongst other things, whether non-payment is the result of culpable neglect. Further, the means inquiry will need to consider the present position of the debtor to enable the magistrates’ court to determine whether the debtor is in a position to pay the debt and the magistrates’ court will need to consider what enforcement options are available to it to secure payment of the debt: see the observations of King J. in R (Wandless) v Halifax Magistrates’ Court and others [2009] EWHC 1857 (Admin.) at paragraphs 24 to 28.

In the present case, in my judgment, there has not been a proper and adequate inquiry into the Claimant’s means. First, such an inquiry will need to consider income and expenditure to determine what the reasonable disposal income of the debtor was in relation to the periods in question. In the present case, the only evidence is that the magistrates’ court knew that the Claimant was working part-time in a sports shop during the periods in question. There appears to be nothing in the evidence to indicate that the magistrates were informed as to the details of the Claimant’s wages, or her expenditure, during the periods of liability. The hand written note prepared by the clerk does not refer, in fact, to the wages that the Claimant received during those periods or the expenditure. The acknowledgement of service does not indicate that the magistrates knew what the Claimant’s income and expenditure were during those periods. The Claimant’s statement refers to her telling her solicitor that she struggled with making household payments and prioritised paying rent, gas, electricity and food. No figures are given. In those circumstances, in my judgment, the magistrates did not carry out an adequate means inquiry to enable them to determine whether the failure to pay the amounts due during the periods of liability was the result of culpable neglect or not. The material does not indicate whether the Claimant was indeed simply using all her available income to provide for basic needs or whether there was other income available which could and should have been used to pay her council tax liability. Her admission that she buried her head in the sand does not, of itself, amount to an admission of culpable neglect in failing to pay the council tax due (as opposed, for example, to a failure to address the consequences of non-payment).

Secondly, in my judgment, the magistrates did not carry out an adequate assessment of means for the purpose of determining whether to commit for non-payment, or to remit part or all of the debt. The magistrates knew that the Claimant received £200 a week in child tax credit and benefits (and was going to apply for further benefits) as at 20 October 2015 and was no longer well enough to work. The evidence does not show that the magistrates had information as to the Claimant’s expenditure for her and her son. The Claimant did offer to pay a total of £10 a week (£5 for each property) and, indeed, did manage to make that payment for a number of months. In my judgment, the obligation to carry out a means inquiry, however, did require them to address fully the disposal income available to the Claimant. They needed to determine whether or not the Claimant could make such payments or whether part of all of the debt should be remitted (see the observations of Gage J. in R (Broadhurst) v Sheffield Justices judgment 26 October 2000 at paragraph 19).

Thirdly, the period of suspension for payment of the debt should not be an unreasonable or disproportionate period. If the period for repayment is unduly long, a suspended committal may be unlawful. Thus, the courts have indicated that periods of suspension in excess of 3 years are likely to be excessively long and so unlawful: see R v Newcastle-upon-Tyne ex p. Devine [1998] R.A. 91 at page 102, and the observations of Irwin J., as he then was, in Soor v London Borough of Redbridge [2016] EWHC 77 (Admin.) at paragraph 20. In the present case, it would take the Claimant a period of 11 and ½ years to pay off the debt in relation to the property at Precinct Rest Bay and 6 and ½ years in relation to the property at Seagull Close. Such periods of suspension are, in my judgment, excessive and disproportionate and render the orders of 20 October 2015 unlawful.

For those reasons, in my judgment, the orders made on 20 October 2015 were unlawful and the orders will be quashed.

For completeness, I note that the Claimant also relies upon what is said to be the best interests of the Claimant’s son, and an alleged breach of Article 8 ECHR. It is not necessary to deal with these matters given that the orders of 20 October 2015 are unlawful for other reasons. I would make the following observations. There is little information about the impact on the son of the making of the orders of 20 October 2015. At that stage, he would have been, it seems, about 16 years of age. If the making of a committal order were otherwise lawful in relation to the debtor, it is not immediately apparent that the fact that the Claimant had a 16 year old son would render the making of a suspended committal order unlawful. Nor has the court heard argument as to the basis upon which it is said that the magistrates’ court should consider the best interests of the child of a debtor when making an order regulation 47 of the Regulations. Similarly, even assuming that a suspended committal order involved a failure to respect the Claimant’s or her son’s right to private or family life under Article 8(1) ECHR, the making of such an order, if lawful as a matter of domestic law, would be likely to be justified under Article 8(2) ECHR. The difficulty in the present case is that the orders were not lawful as there had been no proper means inquiry, and hence no basis for determining if the orders could or should be made, and they were excessive in length. The reliance on Article 8 ECHR would not, therefore, appear to add materially to the case. In the circumstances, however, it is not necessary to resolve these issues, and not necessary to determine ground 5 of the claim, as the orders of 20 October 2015 are unlawful for other reasons.

The committal of the Claimant to prison was based upon the earlier orders of 20 October 2015, and expressly refers to the fact that the Claimant was guilty of culpable neglect. For the reasons given above, the orders of 20 October 2015 were not valid orders, and there was no proper evidential basis for a conclusion that the Claimant had been guilty of culpable neglect given the failure to carry out a proper means inquiry in relation to the periods of liability. For those reasons, the committal of 18 July 2016 is also unlawful and will be quashed.

The Claimant contends that the magistrates should have considered alternatives to immediate committal. As counsel on her behalf points out, it would not have been open to the magistrates to revisit the original decision as to culpable neglect. The court may, however, consider the events since the making of the order fixing a term of imprisonment in default and may postpone commitment for a further period or vary the order (possibly, for example, by altering the amounts of the weekly payment). See Teignbridge District Council v Saunders judgment given on 8 May 2011. There is no evidence that the magistrates’ court considered such options. Furthermore, there is no evidence that the magistrates made attempts to ensure that the Claimant had had notice of the hearing, and if so, whether to proceed immediately to a hearing and committal to prison or to adjourn to see if the Claimant could be brought to court. Given the seriousness of the steps that the magistrates were considering – committal to prison – a court should, in the usual way ensure that notice of the hearing has been served on a debtor and, if it has, whether it is preferable to adjourn and attempt to have the debtor attend court rather than to proceed and commit her to immediate imprisonment. In the circumstances, it is not necessary to determine whether the committal of 18 July 2016 would have been flawed for either of these separate reasons, given that the committal is, in any event flawed for other reasons, and there is limited evidence as to what occurred at the hearing on 18 July 2016.

It is also not necessary to determine whether or not the magistrates’ court was required to have regard to the interests of the Claimant’s son. It is suggested that the court should have regard to the interests of the child when committing a parent to prison. There is, however, limited evidence available as to what information there was before the magistrates’ court or, indeed, what the position of the Claimant’s son was. He was, at that stage, 17 years old (and the limited evidence available is that his grandmother lived close by and could, and did, come to the home on the day of the Claimant’s arrest to look after him). Similarly, and assuming that committal to prison involved a failure to respect the Claimant’s or her son’s right to private or family life under Article 8(1) ECHR, the making of such an order, if lawful as a matter of domestic law, would be likely to be justified under Article 8(2) ECHR. The difficulty is that the order for committal was not justified as a matter of domestic law. Given that the position on these two issues has not been the subject of full argument, that there is limited evidence of the position, and that the committal of 18 July 2016 is unlawful for other reasons, it is not necessary to decide this ground (ground 7) of the claim.

For those reasons, the orders of 20 October 2015 and the committal to prison of 18 July 2016 are quashed. It is not appropriate, in my judgment, for this court to remit the matter to the magistrates’ court with an order that the magistrates determine the matter according to law, essentially for similar reasons to those which persuaded Dyson J., as he then was, not to remit the matter in R v Leeds Justice ex p. Meikelham judgment on 14 February 1994. While the amount of unpaid council tax is substantial, the Claimant has already spent a period of 40 days in prison and the events in question occurred some time ago. I recognise that quashing the orders of 20 October 2015 may still leave the application for committal of 14 August 2014 in place, undetermined, as the orders made on consideration of that application have been quashed. The Council may, in the light of this judgment, decide to take no action in relation to those applications and may wish to withdraw them. The magistrates’ court will in any event need to consider this judgment and ensure that any decision it reaches on any outstanding application is lawful.

In relation to ground 8, that is a challenge to the system by which a person may be committed to prison for non-payment of council tax. In the light of this judgment, the Claimant will wish to consider whether the claim is academic and whether or not she wishes to continue that aspect of the challenge and seek to add the Secretary of State and seek permission to apply for judicial review. I shall make directions for consideration of that claim along the lines suggested by the Secretary of State and summarised in paragraph 24 above.

The orders of 20 October 2015 requiring the Claimant to pay amounts of unpaid council tax in respect of properties at 1 Seagull Close and Precinct Rest Bay Porthcawl and fixing periods of imprisonment of 35 days and 50 days respectively in default of payment are unlawful. The magistrates’ court failed to carry out a proper and adequate means inquiry as required by regulation 47 of the Regulations and were not in a position to determine if non-payment was the result of culpable neglect nor whether the orders were appropriate mechanisms for enforcing the debt. Further, the period of suspension was manifestly excessive and disproportionate. The committal to prison on 18 July 2016 was also unlawful as it was based upon non-compliance with the invalid orders of the 20 October 2015 and there was no evidential basis on which the magistrates’ court could conclude that there had been culpable neglect in non- payment.