I don’t think people should be sent to prison for not being able to pay a debt. So I was pleased at two recent pieces of news about imprisonment for debts.
First, the sentencing guidelines for not having a TV license have been changed from April 2017. There is now a conditional discharge option, instead of a fine. You can’t get sent to prison for not having a TV license, but the fines are often very large for people on a low income to manage, and as these were Magistrates’ Court fines it was possible to be sent to prison for not paying the fine. About 30 people a year have been imprisoned as a result of a fine for not having a TV license.
Second, a single parent who was sentenced to 81 days in prison for not paying council tax was released after the High Court decided that:
The magistrates’ court failed to carry out a proper and adequate means inquiry as required … 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.
Of course it’s not good news that a Magistrates’ Court made such a poor decision in the first place. About a hundred people a year are sent to prison for council tax arrears.
What debts can you be sent to prison for?
You can only be sent to prison for non payment of debts where the case was heard in a Magistrates’ Court. These are:
- council tax arrears, see National Debtline’s Factsheet;
- business rates, see Business Debtline’s Factsheet;
- income tax and VAT debts, this is very rare as it’s used mainly for large scale tax evasion rather than just owing money, see Tax Aid’s Factsheet which looks at HMRC’s other enforcement options;
- magistrates court fines, this includes fines for not having a TV license, see National Debtline’s Factsheet;
- child support arrears, see National Debtline’s Factsheet.
You can’t get sent to prison for other debts. This includes bank loans, credit cards, catalogues, HP, car finance, payday loans, overdrafts, utility bills, parking tickets and any money you owe to a business or an individual. These are all dealt with in a County Court not the Magistrates’ Court.
(There is an exception. If you get a CCJ from the County Court and afterwards are sent an Order to Attend Court for Questioning or you are asked to complete a N56 Form for replying to an attachment of earnings application, then if you don’t attend court/send back the form you could be in contempt of court and sent to prison for that… If you get either of these forms, you should get advice immediately, call National Debtline on 0808 808 4000.)
When might you be sent to prison
Prison is not going to be considered until other ways to get you to pay the money have failed. For example, a council has to have sent council tax arrears to the bailiff and the bailiff has to have been unable to collect them before prison is considered. The best way to avoid prison is to make an arrangement to pay a debt earlier… if that seems impossible, talk to a debt adviser about your options. These sorts of debts are priority debts, they are more important to pay than credit cards or loans.
The magistrates have different options for the different types of debt, so read the relevant fact sheet above for the details. However broadly before sending someone to prison (the legal term is “committal to prison”) there has to be a means enquiry hearing at the court which you must attend.
You should only be sent to prison if the magistrate decides that the reason you haven’t paid the debt is because of either wilful refusal or culpable neglect:
- wilful refusal is where you are deliberately refusing to pay the debt even though you could – for example if you are refusing to pay a tax because you consider it is unfair;
- culpable neglect is where you could have paid the debt but used the money for something else that was less of a priority. “Culpable” means you should be blamed for doing this – if there simply wasn’t enough money to pay the debt, or you were having problems budgeting because of an erratic income or mental health issues for example it can be argued that it wasn’t your fault.
The magistrate will have various alternatives to prison – these differ between the different types of debts. The main aim of the hearing is to get the debt paid, not to punish you, so a reasonable offer of repayment should be accepted.
If you can’t afford to pay, then the magistrate may be able to write off some or all of the debt (the legal term is “remit”).
In many arrears of the country, councils don’t start court proceedings to send anyone to prison for council tax debts.
Get help and turn up to court
If you have to go to a means enquiry you should try to get help from a debt adviser such as National Debtline or a solicitor beforehand. They will be able to help by:
- describing what happens in court;
- helping you draw up an income and expenditure statement to take with you;
- making a list of points about your case that you make, such as the reasons you were having financial problems;
- looking at what you can realistically afford to pay. It’s important you don’t offer more than you can afford, because you may be given a “suspended sentence” on condition you make the agreed payments.
It is essential that you turn up to the court hearing. Even if you have no money at all and think there is nothing that can be done!
At many Magistrates Courts there is a duty solicitor – someone there to help anyone who turns up without their own solicitor. You should try to get to the Court an hour before the hearing time and ask if there is a duty solicitor. If you have an income and expenditure sheet and some background notes with you, this helps a great deal by saving time.