Setting aside a liability order
Although the legislation contains provisions enabling local authorities to apply to the magistrates’ court to quash (‘set aside’) a liability order on the grounds that it should not have been made, these statutory powers have never been implemented.1Sch 4 para 12A LGFA 1992 However, the High Court has confirmed that magistrates’ courts have a limited common law discretion to set aside previous decisions made in the exercise of their civil jurisdiction (which includes the making of liability orders). Magistrates’ courts must consider the following before setting aside a liability order.2R (on the application of Newham LBC) v Stratford Metropolitan Council [2008] EWHC 125 (Admin); see A Murdie, ‘A low key anniversary’, Adviser 130, p56 •There must be a genuine and arguable dispute about the client’s liability to pay.
•The liability order must have been made as a result of some substantial procedural error, defect or mishap.
•The set-aside application must have been made promptly once the client had notice of its existence.
If the summons for the liability order was not properly served (see here), the Administrative Court has recommended a procedure for setting aside the liability order to avoid expensive litigation.3R (on the application of Tull) v (1) Camberwell Green Magistrates’ Court (2) Lambeth LBC [2004] EWHC 2780 (Admin). If the magistrates refuse the application, the court pointed out that they will have acted unreasonably and could have a costs order made against them if an application for judicial review were necessary. •On discovering the existence of the liability order, the client should promptly inform both the local authority and the magistrates’ court that the summons was not properly served.
•The local authority should then satisfy itself as to whether or not the client’s assertion is correct.
•If this is established, the client and the local authority should cooperate in making a joint application to the magistrates’ court to have the liability order set aside.
If the local authority accepts that the order should not have been made, but refuses to apply to set it aside, the client can consider making a complaint to the Local Government and Social Care Ombudsman or Public Services Ombudsman for Wales, particularly if they are out of time to apply themself.