Morley, R (on the application of) v Surrey Heath Borough Council

Under regulation 34(5) of the Council Tax (Administration and Enforcement) Regulations 1992, a billing authority may recover costs reasonably incurred in enforcement proceedings up to payment or tender. Those costs need not be calculated by reference only to the physical preparation and posting of an individual summons. A reasonable average based on the authority’s aggregate enforcement costs may be used where individual calculation is impracticable. Costs are front-loaded: the costs of issuing the summons, including the court fee, are incurred when the summons is issued. The claim was therefore unarguable.

Mr Morley sought permission to apply for judicial review of Surrey Heath Borough Council’s practice of claiming £80 in administrative costs and a £3 court fee when issuing a council tax summons. He had paid the arrears after receiving the summons and before any liability order was made. Permission had previously been refused on the papers by Sir Ross Cranston. The renewed application concerned whether the claimed costs were reasonably incurred up to payment under regulation 34(5) of the Council Tax (Administration and Enforcement) Regulations 1992.

1. The renewed application for permission was refused and the judicial review claim was dismissed as unarguable.
2. Regulation 34(5) limits recovery to costs reasonably incurred by the authority in connection with the application up to payment or tender. The provision does not require an authority to calculate the precise cost attributable to each individual taxpayer.
3. Following the approach discussed by Andrews J in Nicholson, R (on the application of) v Tottenham Magistrates’ Court [2015] EWHC 1252 (Admin), an authority may aggregate relevant enforcement costs for a period and divide them by the number of summonses, producing a reasonable average for standard cases. That approach had been approved in Nicholson v Grant Thornton [2016] EWHC 710 (Admin).
4. The council’s evidence showed that its £80 charge was calculated on that averaging basis. The costs were substantially front-loaded and were incurred in the period leading to the issue of the summons, principally through staff salaries and overheads.
5. The court fee was also reasonably incurred when the summons was issued. Issuing the summons constituted the institution of proceedings, and the fee was not dependent on a later liability order or hearing.
6. The court declined to award the council its costs of attending the renewed hearing. The earlier £500 costs order remained in force. The court also stated that determining alleged criminal offences was outside its judicial-review function and that the evidence disclosed no basis for alleging fraud.

Permission had been refused on the papers by Sir Ross Cranston, sitting as a High Court judge, on 14 June 2017. The renewed oral application was refused by the Administrative Court.