Exercising discretion when applying to the court for a Council Tax Liability Order

The request was successful.

Dear Stockton on Tees Council,

The Council Tax (Administration and Enforcement) Regulations 1992 (the "Regulations") confer a duty on the billing authority to exercise discretion under regulation 34(1) when deciding whether to institute a complaint to the Magistrates' court to enforce payment.

Regulation 34(1) as amended by Regulation 15 of SI 1992/3008 states, with the relevant part emphasised, as follows:

"If an amount which has fallen due under paragraph (3) or (4) of regulation 23 (including those paragraphs as applied as mentioned in regulation 28A(2)) is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, THE BILLING AUTHORITY MAY, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable."

Regulation 34(2) states as follows:

"The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding."

The following are examples (but by no means exhaustive) of what are reasonable factors a recovery officer should take into account in exercising discretion to institute a complaint to the Magistrates court under paragraph (2) of regulation 34 of the Regulations:

1. the level of debt outstanding

2. any payments made subsequent to the full amount becoming due and time remaining of the financial year

3. are circumstances indicative of the debt being settled without resorting to enforcement

4. consider if enforcing the debt would unnecessarily subject the taxpayer to additional costs etc. and therefore amount to a penalty (see 3 above)

5. ensure monies have been prioritised to maintaining the in-year debt

6. allocate to the in-year any monies posted to arrears (or sufficient of it) that would if it had not been misallocated prevented the in-year liability also falling in arrears (see 5 above)

7. check for benefit claims or appeals already in the system and refrain from taking enforcement action where such genuine cases are unresolved

Q1. Does Stockton on Tees Council exercise discretion before proceeding under regulation 34(2) of the Council Tax (Administration and Enforcement) Regulations 1992 to request a summons from a justice of the peace (it may be an automated process)

Q2. If yes to (1) what factors are taken into consideration

Yours faithfully,

Helen Barker

FOI and Complaints, Stockton on Tees Council



Thank you for your e-mail.

 

In light of the current Coronavirus situation, the Council is until
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The Council’s website holds up to date details about the Coronavirus. This
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We hope this service can be reinstated as soon as possible. We recognise
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Kind regards

 

Information Governance Team

Information and Improvement Services

Stockton-on-Tees Borough Council

Municipal Buildings, Church Road, Stockton-on-Tees, TS18 1LD
01642 52 7521
[email address]
[2]www.stockton.gov.uk

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Dear Stockton on Tees Council,

esponse to this request is long overdue. By law, under all circumstances, Stockton on Tees Council should have responded by now

Yours faithfully,

Helen Barker

FOI and Complaints, Stockton on Tees Council

Thank you for your e-mail.

 

In the light of the Coronavirus (COVID-19) and the potential impact on
staff availability, you may experience a delay in receiving a response.
You will be notified/updated of any delays should this be the case.  The
Council is working to the guidance/advice issued by the Information
Commissioner's Office and the Local Government and Social Care Ombudsman,
and within its statutory responsibilities.

 

The Council’s website holds up to date details about the Coronavirus. This
includes information about disruptions to services along with advice and
guidance to our residents about the virus and support available. This is
updated daily.  You can find this information at:

 

[1]https://www.stockton.gov.uk/coronavirus

 

We recognise the rapidly evolving situation is causing uncertainty and
your support and understanding is very much appreciated at this
challenging time as we endeavour to continue to protect customers and
staff.

 

Kind regards

 

Information Governance Team

Information and Improvement Services

Stockton-on-Tees Borough Council

Municipal Buildings, Church Road, Stockton-on-Tees, TS18 1LD
01642 52 7521
[email address
[2]www.stockton.gov.uk

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FOI and Complaints, Stockton on Tees Council

This document was classified as: OFFICIAL

Dear Helen Barker

We cannot find a record of the request you have referred to. Did you receive an acknowledgement other than the standard reply below so we can search by the reference number you will have been allocated.

Kind regards
Stockton Borough Council

Municipal Buildings, Church Road, Stockton-on-Tees, TS18 1LD
(01642) 527521
[Stockton on Tees Council request email] www.stockton.gov.uk

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Dear FOI and Complaints,

https://www.whatdotheyknow.com/request/e...

Yours sincerely,

Helen Barker

Stockton on Tees Council

2 Attachments

[1]{"HashCode":1844345984,"Height":841.0,"Width":595.0,"Placement":"Header","Index":"Primary","Section":1,"Top":0.0,"Left":0.0}

 

Dear Helen Barker

 

Freedom of Information Act 2000 / Environmental Information Regulations
2004 – Ref: 0175/2021

 

Thank you for your correspondence received on 08 September 2020.

 

Your request is being considered under the Freedom of Information Act 2000
or the Environmental Information Regulations 2004 (whichever is most
appropriate). You will receive the information requested within the
statutory timescale of 20 working days.

 However, please note the Acts define a number of exemptions that may
prevent release of the requested information. There will therefore be an
assessment of your request to determine if any exemptions apply to the
information requested. If the information cannot be released, or only
released in part you will be informed of the reasons why, together with
any rights of appeal.

 

If the information requested refers to a third party, they may be
consulted before deciding whether it can be released.

 

Yours sincerely,

 

Information Governance Team

Stockton-on-Tees Borough Council

Telephone: 01642 527521 I Email: [2][email address] I
Web: [3]www.stockton.gov.uk

 

 

 

 

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FOI and Complaints, Stockton on Tees Council

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This document was classified as: OFFICIAL

 

Dear Helen Barker

 

Freedom of Information Act 2000 – Ref: 0175/2021

Thank you for your correspondence received on 08 September 2020. In
response to your request I can now provide the following information. 

Q1. Does Stockton on Tees Council exercise discretion before proceeding
under regulation 34(2) of the Council Tax (Administration and Enforcement)
Regulations 1992 to request a summons from a justice of the peace (it may
be an automated process)

Yes we do use an element of discretion before proceeding under regulation
34(2) of the Council Tax (Administration and Enforcement) Regulations
1992.

 

Q2. If yes to (1) what factors are taken into consideration

Our considerations include the balance outstanding and changes in
circumstances that we have been made aware of.

 

If you have any queries or concerns please contact me in the first
instance.

 

However, if you are unhappy with the way your request for information has
been handled, you can submit a complaint to
[1][email address

 

If, after your complaint has been determined, you remain dissatisfied with
the handling of your request or complaint, you have a right to appeal to
the Information Commissioner at:

 

The Information Commissioner's Office (ICO), Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF.  Telephone: 0303 123 1113  Website:
[2]www.ico.org.uk

 

The ICO does not make a charge for an appeal.

 

Yours sincerely,

 

Sarah McLaren

Information Governance Team

Stockton-on-Tees Borough Council

Telephone: 01642 527521 I Email: [3][email address] I
Web: [4]www.stockton.gov.uk

 

 

 

 

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Dear FOI and Complaints,

Thank you for your response. On a related matter I would like it clarifying what the council's procedure is regarding recovery. For example, I would like it confirming the level of costs and at what stage of recovery they are applied. Also whether an arrangement is possible at final notice or after the summons stage and whether this avoids costs/proceeding to liability order. I have been unable to find any information on the council's website nor have I been able to find a publicly available debt recovery policy.

Yours sincerely,

Helen Barker

Stockton on Tees Council

2 Attachments

[1]{"HashCode":1844345984,"Height":841.0,"Width":595.0,"Placement":"Header","Index":"Primary","Section":1,"Top":0.0,"Left":0.0}

 

Dear Helen Barker

 

Freedom of Information Act 2000 / Environmental Information Regulations
2004 – Ref: 1883/2021

 

Thank you for your correspondence received on 21 September 2020.

 

Your request is being considered under the Freedom of Information Act 2000
or the Environmental Information Regulations 2004 (whichever is most
appropriate). You will receive the information requested within the
statutory timescale of 20 working days.

 

However, please note the Acts define a number of exemptions that may
prevent release of the requested information. There will therefore be an
assessment of your request to determine if any exemptions apply to the
information requested. If the information cannot be released, or only
released in part you will be informed of the reasons why, together with
any rights of appeal.

 

If the information requested refers to a third party, they may be
consulted before deciding whether it can be released.

 

Yours sincerely,

 

Information Governance Team

Stockton-on-Tees Borough Council

Telephone: 01642 527521 I Email: [2][email address] I
Web: [3]www.stockton.gov.uk

 

 

 

 

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FOI and Complaints, Stockton on Tees Council

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This document was classified as: OFFICIAL

 

Dear Helen Barker

 

Freedom of Information Act 2000 – Ref: 1883/2021

Thank you for your correspondence received on 21 September 2020. In
response to your request I can now provide the following information.

I would like it clarifying what the council's procedure is regarding
recovery. For example, I would like it confirming the level of costs and
at what stage of recovery they are applied. Also whether an arrangement is
possible at final notice or after the summons stage and whether this
avoids costs/proceeding to liability order. I have been unable to find any
information on the council's website nor have I been able to find a
publicly available debt recovery policy.

 

Please find attached a copy of the Council Tax and Business Rates
collection policy. In addition, our current fee structure is detailed
below:

 

Application for liability order

 

Council Tax: Balance under £200.00 – £24.00

Council Tax: Balance over £200.00 – £57.50

Business Rates: £71.50

 

Liability order application hearing

 

Council Tax: Balance under £200.00 – £6.00

Council Tax: Balance over £200.00 – £17.50

Business Rates: £22.50

 

 

If you have any queries or concerns please contact me in the first
instance.

 

However, if you are unhappy with the way your request for information has
been handled, you can submit a complaint to
[1][email address]

 

If, after your complaint has been determined, you remain dissatisfied with
the handling of your request or complaint, you have a right to appeal to
the Information Commissioner at:

 

The Information Commissioner's Office (ICO), Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF. Telephone: 0303 123 1113 Website:
[2]www.ico.org.uk

 

The ICO does not make a charge for an appeal.

 

Yours sincerely,

 

Sarah McLaren

Information Governance Team

Stockton-on-Tees Borough Council

Telephone: 01642 527521 I Email: [3][email address] I
Web: [4]www.stockton.gov.uk

 

 

 

 

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Dear FOI and Complaints,

Thank you for clarifying your response. Since I submitted my request a number of anomalies have come to light regarding the enforcement procedure in the area concerned. However, I do not wish to pursue this, though the council might want to reconsider its actions regarding the recovery of Council Tax in light of the issues. Note later on under the heading 'NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED' the point discussed is not a discretionary matter. I suggest this and the other points raised are considered by the Monitoring Officer, but that is of course a matter for the council.

It does not constitute discretion if a decision of whether to apply it or not depends on being prompted by the customer, parameters being agreed in advance relating to the outstanding monetary value of a customer's account or other information that can be input so the council tax processing system can detect it when running the complaint list. Discretion could only be appropriately applied at a stage when the summons is normally requested, i.e. when all the relevant circumstances are known about the customer's account at that particular time.

The information obtained indicates that discretion is not exercised at the point where a decision is needed to be made about whether to request a summons. Discretion is applied earlier than this, after a summons has been issued but before a liability order is obtained and after a liability order has been obtained, primarily to make payment arrangements which need to be monitored after the debt is secured by a liability order. The actual process of running the complaint list and the summonses is automated for which the defendant incurs disproportionate costs.

It is apparent from information obtained that the defendant incurs a £57.50 sum in respect of the council requesting the issue of a summons (an automated procedure). However, that sum actually covers the council's additional expenditure in respect of sending out reminders and officer time engaging with customers who query their accounts at this point. Also the same for final notices (see note 1 below) and after a summons has been issued in respect of customers who query their accounts to arrange payment plans which are conditioned, in the latter case, upon the council obtaining a Liability Order (to secure the debt) adding a total £75.00 court costs comprising summons costs of £57.50 plus a further £17.50. Assuming the arrears are £200.00 or more (see note 2) this sum (£17.50) is added to the £57.50 costs already incurred for the request of the summons in respect of the accounts of all customers who have not paid the total amount outstanding of their liability, whether or not they take advantage of the pre-arranged payment plan. This is presumably to compensate the council for the officer time attributed to making the application for a Liability Order (on day of the hearing).

Note 1: Before the summons stage (final notice), a customer is able to avoid summons costs, for example, a taxpayer who has lost her right to pay by instalments may have them effectively re-instated if she manages to agree a payment arrangement. Discretion whether to enter into a payment agreement with a taxpayer is applied again once the council has obtained a liability order (as an alternative to taking recovery action) but by that time she would have had the total £75.00 court costs added to the debt and included in the payment plan.

Note 2: Summons and liability order costs are £57.50 and £17.50 respectively only when arrears are £200.00 or more. If the balance is under £200.00 lesser sums of £24.00 and £6.00 are added.

So the costs in reality cover the council's expenditure (additional to the issue of the summons) attributable to before the summons is requested, both after the summons is requested but before the liability order application and after the order has been obtained in respect of officer time engaging with customers who agree to enter into payment agreements. The costs must therefore with absolute certainty cover the general administration of the council tax and enforcement departments.

RELEVANT LEGISLATION AND CASE LAW

I understand that the council must adhere to the Council Tax (Administration and Enforcement) Regulations 1992 and also be mindful of all established case law regarding the area concerned.

I am aware of a number of cases but particularly three which I would like to refer to regarding your response namely R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin); Williams v East Northamptonshire [2016] EWHC 470 (Admin) and Bexley Council v Magistrates' Court: [2016] EWHC 711 (Admin).

Bexley Council v Magistrates' Court: [2016] EWHC 711 (Admin)

This was a case stated appeal by London Borough of Bexley against the court's decision not to award the Council its full requested costs.

The London Borough of Bexley requested costs of £115 for each defendant in respect of a bulk Council Tax liability order application. The District Judge only granted £115 in costs on the individual cases where the council tax outstanding was above £200. Lesser costs ranging from £3 to £100 were granted in cases where the council tax owed fell at or below £200.

The Council contended that the District Judge erred in awarding costs on the basis of a sliding scale and in so doing did not award costs of "an amount equal to the costs reasonably incurred" by the Council in respect of the liability order applications as he was required to do.

On considering the questions stated in the context of the proper construction of the Council Tax (Administration and Enforcement) Regulations 1992, and the general guidance as to the interpretation of Regulation 34 provided in the Tottenham case judgment, the high court's decision essentially was that:

'whether a cost is "reasonably incurred" is not referable to the direct numerical relationship between the value of the liability order and the value of the costs bill.'

In light of the above, the Council's policy to claim total costs of £30.00 for balances outstanding of below £200.00 whilst claiming £75.00 for balances of above £200.00 is unlawful and if the law was properly applied the Magistrates' court would be required to refuse granting the costs.

Williams v East Northamptonshire [2016] EWHC 470 (Admin)

It is understood that when a summons is issued the court costs (£57.50/£24.00) are added. I am making the assumption that the costs are actually added to the customer's account at the point when the summons is issued because it is generally the approach taken by local authorities.

I am aware that in the East Northamptonshire case, the judgment went to some lengths to clarify the position with regard to when, i.e. at what stage it was permissible for a billing authority to add summons costs to a customer's account. In essence, what the judgment determined was that it was entirely lawful for the billing authority to inform the customer by stating on the summons the amount of costs it would ask for in the event it proceeded to make the application at court for a Liability Order. Implicit in this is that it is impermissible to add to the customers account at this point the costs claimed by the billing authority because there is only any legal basis to do so once the court has granted the Liability Order. The following in paragraph 28 of the judgment bears this out:

"...I have come to the clear conclusion that the summons is not an abuse of the process or otherwise invalid by reason of the fact that it includes reference to a claim for costs. The heading of the summons makes clear it seeks recovery of the Council Tax only. The complaint is therefore only as to the non payment of the Council Tax. The tax due is the Council Tax which is separately identified both on the first page and on the subsequent page. It is abundantly clear that the subject matter of the summons is therefore the recipient’s liability for the Council Tax...."

NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED

The council's collection policy effectively says that when a summons is issued, but before the Court hearing, it is possible to agree a payment arrangement but on the basis that the court will still be asked to grant a Liability Order (to secure the debt) and the payment plan will include the costs incurred in obtaining the Liability Order (£57.50 summons and £17.50 liability order).

These costs are incurred at a point after the customer has tendered payment. Therefore, the cost attributable to this activity could not lawfully be included in the costs claimed because expenditure may only be recharged that has been incurred by the authority up to the time of the payment or tender and clearly resources called upon by engaging staff in the matter would occur after payment was tendered. Expenditure incurred by the authority after that point falls on the wrong side of line to be referable to the summons and would only be lawfully recharged (if eligible) in respect of those who had not paid or tendered to the authority the aggregate of the outstanding amount and costs before the court hearing because only those customers may be proceeded against further and incur additional costs.

To be clear, it is not just the costs in these circumstances which are artificially inflated by either front loading or being charged where there is no legal basis at all which is a point of contention. The consequences are that for all those cases against whom the council proceeds in order to secure the debt once an amount has been agreed (the payment arrangement), the action is unlawful because regulation 34 of SI 1992/613 provides that the authority shall accept the amount and the application shall not be proceeded with in these circumstances.

Paragraph 34(5) of the regulations, are as follows (with emphasis):

“(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or TENDERED to the authority an amount equal to the aggregate of—

(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application UP TO THE TIME OF THE payment or TENDER,

the authority shall accept the amount and the application shall not be proceeded with.”

The authority could not defend its actions on the grounds that an arrangement does not constitute payment therefore it is entitled to obtain a liability order to secure the debt because the law does not say that the amount must be paid for the application not to be proceeded with, only that the amount tendered is accepted (the aggregate of the outstanding amount and costs). By agreeing a payment plan which encompasses the outstanding amount and costs (costs which are properly referable to the enforcement process) the authority has accepted the amount and so there is no legal basis to proceed to obtain a liability order from the Magistrates' court.

Notwithstanding the lack of provision to proceed once the aggregate of the outstanding amount and costs has been agreed by the council, even if it were permissible, these costs and any other incurred would have further criteria to meet for the court to be satisfied that they were reasonably incurred.

R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)

The Tottenham case provides in the judgment some general guidance regarding Council Tax Liability Order court costs and give clues (paragraphs 35 and 46) as to what should not be included in the costs and an approach that might be legitimate in respect of averaging the costs.

“It is clear that there must be a sufficient link between the costs in question and the process of obtaining the liability order. It would obviously be impermissible (for example) to include in the costs claimed any element referable to the costs of executing the order after it was obtained, or to the overall administration of council tax in the area concerned.” (Paragraph 35)

"In principle, therefore, provided that the right types of costs and expenses are taken into account, and provided that due consideration is given to the dangers of double-counting, or of artificial inflation of costs, it may be a legitimate approach for a local authority to calculate and aggregate the relevant costs it has incurred in the previous year, and divide that up by the previous (or anticipated) number of summonses over twelve months so as to provide an average figure which could be levied across the board in "standard" cases.." (Paragraph 46)

However, the above does not go so far as to specify what the right types of costs and expenses are, plus the 1992 Council Tax Regulations (and associated guidance) also apply so any provisions in those capable of establishing what are "relevant costs" need taking into account. Crucially, the possibility that the approach of averaging the costs is conditional upon the right types of costs and expenses being taken into account and being mindful of the dangers of artificially inflating the costs.

Government guidance from 1993 and 2013 both provide within them that "the Court may wish to be satisfied that the amount claimed by way of costs in any individual case is no more than that reasonably incurred by the authority". They do so because the court is obliged to hear individually anyone wishing to raise a defence and regulation 35(1) of the Regulations provides that a single liability order may deal with one person and one amount.

The streamlining of the process, i.e. by hearing cases of all the defendants in a bulk application who decline the invitation to defend themselves would if the law was properly applied be met with a forfeiture of costs income because only expenditure which is common to every defendant may lawfully be included in a standard sum. For example, even if expenditure attributable to engaging with customers agreeing payment arrangements was not impermissible for the reasons discussed, they would not otherwise be deemed "relevant costs" to be included in the calculation because the expenditure is not common to every defendant but also because it would be impermissible to include in the costs any element referable to the overall administration of council tax in the area concerned (para 35, Tottenham judgment).

There is also the anomaly that the customers who to the greatest degree drive the level of activity are ironically avoiding the recovery process and not incurring any costs. These are generally those customers who have negotiated their instalments being re-instated, whilst customers who settle their debt without causing additional work are left subsidising this expenditure when bizarrely none is incurred in connection with their summonses.

Expanding further on the concept of "reasonably incurred". If the costs are to be recharged lawfully to the customer it must have been reasonable for the council to have incurred them. Any expenditure recharged to the customer in respect of costs has not been reasonably incurred which is attributable to activity carried out by the council above what is necessary to secure the court order. Obtaining the order is merely a formality and it functions simply as the vehicle empowering the council to make use of a range of enforcement measures to pursue monies owed should it be necessary once it is in place, so with that in mind and that applications are made en masse, then the vast majority of costs typically claimed by local authorities are not necessary in a process which amounts to no more than seeking permission from the court.

Expenditure attributable to work carried out, which is clearly by its nature referable to the overall administration (in the area of council tax concerned) would not by virtue of it coinciding with when the complaint is in progress be sufficient to link it to the actual process of obtaining the liability order. This is separable from any that is permissible to be included in the costs claimed and would need omitting from the calculation because it would not be reasonable to expect those paying them to subsidise general administration or to be exploited as a means of funding revenues/recovery staff - and - because it is not common to every defendant.

It is generally accepted by billing authorities that defences against the issue of a Liability Order at the court hearing which are considered to be valid are restricted to no more than a handful. However, there are seven obvious additional defences that would be valid if no discretion is exercised prior to requesting the issue of a summons, expenditure incurred by the council outside the process of applying for and obtaining a liability order are included in those costs and there are different amounts of costs added. They would be that;

1. the billing authority has not (does not) comply with regulation 34(1) of the Council Tax (Administration and Enforcement) Regulations 1992;

2. expenditure amounting to £57.50 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise customers who opt to make payment in line with the pre-arranged payment plans;

4. the costs in respect of instituting the summons include expenditure which is incurred by the council before and after that action;

5. the costs in general have been inflated to subsidise expenditure incurred by the council in respect of officer time monitoring arrangements and/or engaging with customers after the process of applying for and obtaining the liability order has ended;

6. the higher level of costs have been inflated to subsidise expenditure incurred by the council in respect of the lower level of costs (see Bexley Council v Magistrates' Court: [2016] EWHC 711 Admin); and

7. the costs in general have been inflated to fund the running of the council tax and enforcement departments.

Yours sincerely,

Helen Barker