R (Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council [2017] EWHC 34 (Admin) (judgment awaiting publication)
There is an exceedingly long line of case law, stretching back beyond the days of the community charge (which was of course better known as the Poll Tax). In those cases, the courts have traditionally quashed custodial orders improperly imposed by magistrates for non-payment of council taxes.
Most recently, the legal charity Centre for Criminal Appeals have picked up the reins as part of their work challenging unduly harsh sentencing practices. The case of R(Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council, a judicial review claim, is the first of the cases supported by the Centre to reach the High Court, and concerned imprisonment of a woman who had failed to make council tax payments required of her.
The claimant, Melanie Woolcock, is a single mother living with her teenage son in Wales. She had failed to make council tax payments in the two houses she lived in over a handful of years, which left her owing around £4,700 to the Local Authority. Despite it being submitted to the magistrates’ court that she was suffering from depression, was unable to work and was in the process of applying for benefits, the magistrates found that her failure to pay was due to “culpable neglect” in breach of Regulation 47(2) of the Council Tax (Administration and Enforcement) Regulations 1992. The court imposed a custodial order on the claimant, suspended for as long as she made payments of £5 a week (out of her income of £200 a week) in relation to each property.
For a few months, Ms Woolcock was able to make payments, before she again defaulted. She was committed to prison for 81 days unless the money was paid.
Extension of time
The court’s rationale for extending time to bring this judicial review claim, which is set out at paragraph 25 of the court’s judgment, is of note. Although brought out of time, because the liberty of the applicant was at stake, court agreed to extend time and therefore to allow the claim to be brought.
Relevant principles
Helpfully, at paragraph 27, Lewis J runs through the legal principles surrounding Regulation 47. They are uncontroversial, but bear repeating:
- The power to commit can only be used to extract payment and not as punishment.
- The magistrates must enquire about means, and consider whether the failure to pay was the result of wilful default or culpable neglect – only if that is the case may an order for imprisonment be mad.
- In order to determine whether the defaulting party has been guilty of culpable neglect, the means enquiry must consider the period of time in respect of when the debt was owed.
- The means enquiry should also consider the present position of the debtor to determine whether he or she is in a position to pay the debt, and then consider which enforcement options are available.
The court’s determination
Lewis J found the Magistrates’ order commit the Claimant to prison in the event that she defaulted in her payments to be unlawful and quashed the same.
He found that there had not been a proper or adequate means enquiry, as the Magistrates had not properly considered Ms Woolcock’s income and expenditure over the relevant period and did not come to a view regarding her disposable income. There should have been such an enquiry before proceeding to consider whether Ms Woolcock was guilty of culpable neglect.
Further, Lewis J found that the period of repayment was excessive. By having Ms Woolcock pay £5 a week per house, it would have taken her 11 and a half years in relation to one property and 6 and half years for another. These periods of suspension were considered “excessive and disproportionate and render the orders of 20 October 2015 unlawful”.
Comment
There is no doubt the magistrates should have heeded the warning given by the Court of Appeal in 1946 in the case of Gordon v Gordon ([1946] 1 All ER 247 at 250F): “However disobedient the party against whom the order is directed may be, unless the process of committal and attachment has been carried out strictly in accordance with the rules, he is entitled to his freedom…”
It is suggested that the law in this area is settled and the senior judiciary has now for decades cautioned magistrates to handle these cases with precision. In those circumstances, the issue of why cases such as this occur is a serious one.
The answer may in part lie in practical considerations. Given the relative scarcity of these types of cases (it is suspected that only around 150 people a year are sent to prison for non-payment of council tax), magistrates and their clerks may be unfamiliar with these cases. Further, those who face committal orders are often unrepresented and many lead chaotic lives.
Or perhaps the culture surrounding committal proceedings is generally inappropriate. The purpose of these regulations is to secure payment of the debt and imprisonment should be the last resort. And yet, in Ms Woolcock’s case, like in many others, it might be thought that imprisonment was in reality used as a form of punishment with insufficient attention being paid to the alternatives to custody.
Further still, it might be thought that the system is rather too rigid. If a decision is made to fix a period of imprisonment, but to suspend it while payments are made, a person may find themselves unable to comply years later and risk being taken straight to prison without consideration of why they defaulted.
At a time when prisons are over-populated, and there is pressure on the Women’s Estate in particular to decrease the numbers doing time for non-violent offences, reforming this area of law is surely wise so that others do not experience the ordeal faced by Ms Woolcock.
As a final point, it is worth noting that Ms Woolcock was funded by legal aid, demonstrating the vital importance of that source of funding to those who otherwise would find it difficult to secure representation in matters of central importance to their lives.
Sam Genen is a solicitor at Ahmed Rahan Carr, and acted for Ms Woolcock in this case.
Sophie Walker is a Pupil Barrister at 1 Pump Court chambers.
